Enforcement of the constitutional norms by a body of constitutional review: from the formal to realistic approach

The procedure for making decisions by the constitutional review bodies has become an important subject of research in modern constitutional law. The perception of constitutional justice as a type of law enforcement activity leads us to expect that the constitutional courts act according to an appropriate algorithm, which is a solution to a syllogism, in which the major premise is a constitutional norm, and the minor premise is a norm of the act under review. Meanwhile, actual decisions often indicate that they were made in a different way. This article describes the factors that force constitutional courts to deviate from the classical application of the constitution. Among such factors, there is the difficulty of interpreting the constitutional text, which forces the court to express its will within the framework of construction. The article also reveals the problem of a possible conflict between morality and law when the constitutional review body strictly follows the text of the constitution to the decision, and discusses how this conflict cannot be ignored by the court, given its status, including as a public moral authority. The issue of emotional detachment required of judges by normative theories is analyzed separately. Using the achievements of psychological science, it is concluded that it is impossible, and that is why it is necessary to take a realistic view of the role of an individual judge in making a decision, as everybody is influenced by many external factors. These obstacles inevitably lead the constitutional review body to a voluntaristic method of decision-making, in which the necessary result is determined at the beginning, and then the appropriate constitutional norms and methodology for their interpretation are selected. Despite the obvious risk of judicial arbitrariness, it is quite possible to assume that this result-oriented decision-making is carried out by a constitutional court in good faith in order to protect the constitutional foundations and the rights of individuals. Meanwhile, full transparency is necessary, provided first of all by a detailed and honest reasoning. In addition, taking into account the described problems of constitutional law, it is necessary to review existing approaches to the nature of constitutional review in general.