Towards a methodology of analyzing defensive constitutionalism: The model of the branched hermeneutic cycle and the concept of hermeneutic sovereignty

Introduction. In response to the “protective turn” of constitutional courts, academic discourse has focused on the dogmatic content of decisions or their external political determinants, neglecting the key question of how legitimacy is produced. Problem statement. This article proposes a hermeneutical turn, shifting the focus to the immanent technology of judicial meaning-making. Theoretical analysis. The concepts of a branched hermeneutical cycle, which describes the dual structure of legitimation in a collegial court (the majority branch vs. the critical branch of a dissenting opinion), and hermeneutical sovereignty as the court’s ability to strategically manage the inherent doubt of law in order to produce mandatory legal certainty, were introduced and justified. Empirical analysis. A method for diagnosing the type of sovereignty through the analysis of strategies for dealing with dissenting opinions was proposed. Conclusion. The article sets new methodological coordinates for analyzing the stability of constitutional orders, overcoming the ideological dictates of transatlantic approaches.