The influence of procedural features of constitutional control on the style of argumentation: a comparative study

Abstract

The subject of the study was the procedural features of constitutional control that affect the style of constitutional and judicial argumentation. The author sought to identify and analyze the parameters of norm-control activity that determine the content of argumentation techniques, using as an empirical basis of the study the experience of organizing constitutional control in Russia, Australia, Austria, Germany, Israel, Spain, Italy, Canada, USA, Taiwan, France and South Africa. Particular attention was paid to such procedural and procedural factors as the model of constitutional control, the procedure for considering cases, including the specifics of raising questions addressed by judges to participants in court proceedings, the availability of texts of procedural documents, the tradition of presenting the text of a court decision, the number of judges, the collegial procedure for making a decision and the content of the institute of dissenting opinion. Using the concept of argumentation style and identifying the correlation between specific procedural rules and argumentation patterns arising in the practice of constitutional justice, the author outlined the advantages and disadvantages of certain parameters of judicial control over the constitutionality of normative acts. In general, the conducted research allows us to conclude that the institutional environment of norm-controlled activity is formed not only by procedural rules, but also by legal traditions that dominate in a particular state, since the relevance, suitability and relevance of individual argumentation strategies used within the framework of constitutional control largely depend on their compatibility with the nature of legal thinking.