Evidence and Error in Constitutional Review. On the Problems of Autodidacticism in High Courts

Abstract This paper focuses on a relatively under-addressed aspect of constitutional review mechanisms: their epistemic dimension. The issue under examination arises from the convergence of two contingent features. On the one hand, some of the arguments used in constitutional review are “fact-dependent”: their correctness depends on the occurrence of certain facts. On the other hand, when evaluating the constitutionality of norms, some high courts adopt a decision-making model with a self-taught profile; a model which overlooks evidential activity. The combination of these features results in a tension that this article seeks to highlight: adopting a self-taught model to resolve “cases of fact-dependence” is incompatible with the rationalist commitment to reducing the number of judicial decisions based on factual errors. The article aims to characterise this tension and elucidate the assumptions that render it problematic wherever it occurs.