Mr Çağrı Gürkanlı

An increasingly popular constitutional-theoretical approach, usefully referred to as constitutional realism, posits that constitutional phenomena are inherently political and necessitate explanations based on political causes and outcomes. Consequently, constitutional realism implies an attempt to reduce the legal to the social and political. This implication raises a question: How can we understand constitutional phenomena such as constitutional adjudication between the legal and the political? Posing this question is imperative because realism appears to challenge the foundations and methodology of constitutional theory by presupposing that normative legal considerations and interpretive problems, seemingly intrinsic to explaining constitutional phenomena, are insignificant.

I claim in this thesis that constitutional phenomena can be explained from a legal stance grounded in the prejudices that allow for the existence of the legal-constitutional practice to which those phenomena belong. These prejudices render an area of law, such as constitutional law, hermeneutically real. If an area of law is hermeneutically real within a country during a certain period, the legal norms of that area are taken seriously by the participants of the legal practice. Hermeneutical reality is a form of legal integrity that distinguishes what is political from what is legal. It establishes a kind of legal autonomy that tells us when a country’s constitutional norms, practices, and institutions are not a sham but constitute applicable constitutional law.

Based on these arguments, I develop a Gadamerian framework to understand legal and constitutional phenomena, which I call jurisprudential hermeneutics. In the context of constitutional theory, jurisprudential hermeneutics aims to address the challenge raised by constitutional realism. In contrast to realism, jurisprudential hermeneutics maintains that explanations rooted in legal reasons can be significant and autonomous, provided they are anchored in the hermeneutical reality of the constitutional law of a country