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Evolutionary Interpretation and the Separation of Powers

4 important questions on Evolutionary Interpretation and the Separation of Powers

Who decides what the law ought to be?

There is no clear hierarchical relationship between the legislature and the judiciary. On the one hand there is a statute telling the court to decide cases according to the statutory law and under no circumstances to assess the intrinsic merits. On the other hand we have article 94 of the Constitution instructing the Court not to apply a provision of a statute or the Constitution, if applying it would violate Treaty provisions binding on everyone, such as Article 8 of the EVRM.

What would Montesquieu concur?

Evolutionary interpretation does not endanger the separation of powers.

How can one make the case for evolutionism as a theory of constitutional interpretation?

The intricate interplay between values and the persisting but ever changing tensions and conflicts within society makes adaptability the main feature qualifying constitutiontal values like freedom and equality for survival. So there is a case to be made for evolutionism as a constitutional philosophy.

What is the nature of the idea's (freedom, respect) where the constitution is build of?

Retracting the footsteps of Hegel and Savigny, one could say that these ideas belong to the realm of the objective spirit where they are destined to develop along the lines determined by the particular Volksgeist of which they are part.