The Common Law Methodology in Barren Soil: Prospective Judicial Precedents and Abstract Judicial Review

Waluchow argues that the common law methodology allows the interpretative construction of constitutional commitments to be incremental and bottom-up, since political decisions on constitutional rights would be guaranteed by agreements lacking a complete theorization. In deciding a case, a legal rule will be settled and later clarified or expanded by further cases or by legislative intervention. Thus, the actions of Congress and the Court will not be mutually exclusive but shared and cooperative. Behind these theoretical arguments, I singled out some features of institutional design which are necessary for this hypothesis to work, namely: (a) the development of a system of non-prospective and principle-oriented precedents; and (b) either a system of weak judicial review or a system of strong judicial review based on a model where a higher court decides cases focusing on actual facts rather than on abstract propositions. I argue that this methodology will not find fertile ground in the practice of constitutional courts whose precedents are constructed to operate as immutable rules imposed from top to bottom, and where constitutional rights cases are settled by an abstract form of judicial review.