Who Gives the Constitution Its Purpose? MOPA, Judicial Power And the Search for Interpretive Discipline in Ghana

The easiest criticism is that MOPA permits judges to make law. Taken alone, that criticism does not carry the argument very far because interpretation has never been entirely mechanical. Even a judge committed to a strongly textual approach must decide what constitutional words mean in their context, how provisions which appear to point in different directions should be reconciled and which of several linguistically possible meanings best fits the document. Barak himself makes no attempt to disguise this reality. Judicial discretion is expressly recognised within his theory, and he argues that interpretive approaches which claim to eliminate discretion frequently exercise it without acknowledging that they are doing so.