Publication details
Má riziko zneužití ústavního institutu ovlivňovat ústavněprávní interpretaci?
| Title in English | Should the Risk of Abusing a Constitutional Tool Affect Constitutional Interpretation? |
|---|---|
| Authors | |
| Year of publication | 2026 |
| Type | Peer-reviewed scientific article |
| Magazine / Source | PRÁVNÍK |
| MU Faculty or unit | |
| Citation | |
| web | https://www.ilaw.cas.cz/casopisy-a-knihy/casopisy/casopis-pravnik/archiv/2026/2026-6.html?a=4031 |
| Keywords | constitutional interpretation; abusive constitutionalism; SLAPP; constitutional indetity; legal reasoning |
| Description | Examples from around the world demonstrate that constitutional tools can be abused to achieve anti-constitutional goals – avoiding accountability, limiting political competition and silencing public debate. Constitutional interpretation is one possible way to increase constitutional resilience against abuse. Yet, considerations about abuse shall not trump all other regards. Such considerations must be integrated in the process of constitutional interpretation in a way that minimizes dangers of purely intuitive and pragmatic approaches, weaknesses of judicial consequentialist reasoning (low institutional capacity to forecast future consequences) and risks of judicial self-aggrandizement. This article puts forth an approach which aims to respond to the challenge of constitutional abuse while avoiding the mentioned weaknesses. I explain the constitutional relevance of the risk of abusing constitutional tools, link considerations about abuse to a specific normative standard (purposiveness of a constitution) and integrate them within the teleological method of constitutional interpretation. Subsequently, I introduce the abuse-risk test to provide a structured and transparent way of reasoning about the risk of abuse. It consists of three steps: (1) assessing the probability of abuse, (2) assessing the seriousness of abuse, and (3) considering trade-offs. I illustrate the test on the examples of strategic lawsuit against public participation (SLAPP) and of abusing constitutional identity in EU law. |