دور القاضي الدستوري في التفسير المنشئ : دراسة مقارنة

الملخص EN

According to some Fiqh that explanation is only revealed the will of the legislature, and therefore can not be the interpreter of a role in amending the legislation, but we believe that the interpreter is the one who gives the text its meaning, so the text rule is influenced by the position of the interpreter where Ghali some to a degree that would make the text is what he says his interpreter.

And the interpretation of provisions of the Constitution apply pray before the constitutional judge, where he must take down a fair verdict in the dispute must be that the judge is affected when the Constitution ambient conditions and the needs of the process and what it could entail the application of opinion, which tends findings in real life explains, to have this interpretation agreed with the course of justice and inconsistent with the wisdom of the legislation, and that does not overlook the evolution in the movement of life and achieve relevance and harmonization of legislative text and development taking place in the social, economic and political conditions.

Often exceed the realities of time and the developments of society rigidity of constitutional provisions to create a vast gap between what is an object on the ground and must be in accordance with the provisions of the Constitution, so the constitutional judiciary is seeking through the method of interpretation of the originator to the adoption of the doctrine of evolving interpretation or contemporary constitutional provisions confirming that the Constitution document progressive position - despite the deadlock - the prosecution of developments in society and achieve the aspirations of its people.

Constitutional and judiciary through its interpretation of the Constitution may then marched principles implicit rules from within the Constitution itself, has led its development and practice of constitutional oversight to review a lot of constitutional values enshrined in the Constitution itself beyond the words contained in texts, constitutional judge in Tweserh flexible constitutional provisions envisages the will power Originally developed by the foundation through his discretion Give these texts explanation consistent with the prospects of change that is going through the community.

We reviewed in the study of this research the extent of the structural role of the constitutional judge in the United States, Germany, Egypt and Iraq, where we have focused in the beginning of the search through the first demand on the doctrinal views on the importance of interpretation originator constitutional judge and Arzina in the second requirement for two types of interpretation originator two interpretation host or construction and the second type is the substitution of constitutional interpretation to the judge through a systematic comparison to spend US Supreme Court and the constitutional Court and the German Federal constitutional Court of Egypt and the Federal Supreme Court in Iraq.