BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Based on this link, we can argue that the big paradigmatic jump at this stage of history lies in the fact that the law should serve as a guarantee of democracy. Thus, insofar as we agree that the Constitution has special features that arise from a profound paradigmatic shift, the role of hermeneutics is to fundamentally preserve the normative force of the Constitution and the degree of autonomy of the law against attempts to usurp it via the political process, which is understood as lato sensu . In this context, the substantial engineering is to preserve the normative force of the Constitution and to prevent politics from impacting the law. This (inter) mediation is the role played by the principles forged in the tradition of the democratic rule of law. Thus, the principles function as a Leitmotiv of the interpretive process, as if to show that each judicial statement has a motivation (Jede Aussage ist motiviert, as Gadamer would say). Principles are meant to show/denounce the break with the plenipotentiarity of the rules. In this sense, the law does not relieve the interpreter of any commitment with reality. For these reasons, it is essential to understand that constitutional methodology does not require canon, rules or meta-rules but rather a way to implement the Constitution (i.e., the manner by which the Constitution should be effectively interpreted). Thus, I proposed a minimum set of principles (i.e., hermeneutics) to be followed by the interpreter. Such principles, supported by the historicity of understanding, only become evident if they are placed in a context of reflection that is radically practical and specific, as they represent a historical context of meanings that are shared by a particular political community. The interpretation of the law only has meaning if it entails a strict control of judicial decisions because interpretation is an issue that strikes at the heart of this new paradigm (i.e., democracy). There seems to be no disagreement over this argument. 4.1.1 Principle one: the preservation of the autonomy of law In this new paradigm, the law should be understood in the context of increasing its autonomy, which is achieved through successful attempts to control arguments from politics. Thus, the Constitution is a manifestation of the (marked) degree of autonomy of the law, which should be understood in its autonomous dimension compared with the other dimensions (e.g., politics, economics and morality) that are interchangeable with the law. One must pay special attention here because morality has been used as a “gateway” by adjudicating discourses with corrective intentions for the law (i.e., by discourses that incorporate political and economic analysis of the law). Within this context, the resumption of morality by the law should be viewed from that which Habermas named co-originality . This empowerment takes place in the historical context of the twentieth century and reached its peak with the drafting of the constitutions in the second post-war period. 4.1.2 Principle two: hermeneutic control of constitutional interpretations to overcome discretionary power To preserve the level of autonomy achieved by the law, states must implement control mechanisms of judicial decisions, which are the repository for the tension pole shift

88