Fernando Simón Yarza
- Bill of rights — Civil and political rights — Collective rights — Social rights — Individual rights — Limitations on rights — Fundamental rights — Universalism
Published under the direction of the Max Planck Foundation for International Peace and the Rule of Law.
General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
1. Western Tradition
1. The concept of ‘individual right’ is one of the most important categories of modern law. The term ‘right’ is a translation from the Latin ius, although both in Roman law and in the Middle Ages the term ius was identified with the res iusta, the ‘just’ or the ‘right thing’ (see, eg, Gaius, Institutiones, II, 14; and Aquinas, Summa Theologiae, II-II, q. 57, ad 1). In its modern sense (see Suarez, De Legibus, I, ii, 5), ‘right’ means power (potestas) or faculty (facultas), and it constitutes a moral attribute of the person (for a more detailed analysis, see Finnis 205–210). The ‘individual rights’ encapsulated in our constitutions owe their meaning to the modern concept of right, and they refer to an individual sphere which is legally secured and upon which the legitimacy of the state depends.
2. The turning point from an objective natural law theory to its specification in particular rights may be found in Christian Wolff’s (1679–1754) theory of the iura connata (see García-Pelayo 350). Nevertheless, the development of the natural law doctrine owes a considerable amount to contractualist political philosophy. According to this theory, in order to understand human nature we must strip human beings of everything which is cultural—even of language, says Rousseau (see Gourevitch 146). The result is an individual understood as an autonomous holder of innate rights. The father of modern individual rights theory, John Locke, embodied this ‘title of perfect liberty’ in the person’s rights ‘to preserve ... his liberty and estate, against the injuries and attempts of other men’ (Locke para. 87). The goal of society and positive law (theory of positive law) is to protect those individual rights. Modern declarations of rights differ from old royal charters and feudal constitutions precisely in the fact that they do not appeal to customs, or concessions, or historical privileges, but exclusively to human nature.
3. With the universalization of individual human rights, their justification has become partially diverse, dependent on different cultural traditions. Jacques Maritain once explained that, at one of the meetings of a UNESCO (United Nations Educational, Scientific and Cultural Organization) national commission where human rights were being discussed, some expressed astonishment that people with such different cultural background and ideologies agreed upon the rights: ‘Yes, we agree about the rights, but on condition that no one asks us why’ (Maritain I). Rights are a ‘practical idea’, to a certain extent recognizable regardless of their further theoretical articulation, which are not identical among different cultural traditions.
2. Chinese Tradition
4. In the Chinese tradition, the concept of rights has not played as important a role as in Western culture after the liberal revolutions. In the Confucian political tradition (Confucian constitutionalism), the basic ethical concept is ‘the fulfilment of the duty to one’s neighbour, rather than the claiming of rights. The idea of mutual obligation is regarded as the fundamental teaching of Confucianism’ (Lo 187). However, this does not mean that the concept of ‘right’ is opposed to that tradition, since rights correspond to basic human needs which are common to all men. In spite of its non-insistence on rights-claims, Confucianism commands a ‘sympathetic attitude of regarding all of one’s fellow men as having the same desires, and therefore the same rights’ (Lo 187).
3. Hinduist and Buddhist Traditions
5. Something analogous happens in the Hinduist and Buddhist traditions. Though there is no natural rights theory (philosophical foundations of natural rights) comparable to the one developed by Western liberalism, both Buddha and Manu spoke of the freedoms and virtues which are necessary to lead a flourishing life. They proposed a code of ten ‘essential human freedoms and controls or virtues’ which can be considered a characteristically Indian moral source for human rights. On the one hand, they listed five freedoms or social assurances: 1) freedom from violence (Ahimsa); 2) freedom from want (Asteya); 3) freedom from exploitation (Aparigraha); 4) freedom from violation or dishonour (Avyabhichara); and 5) freedom from early death and disease (Armitatva and Arogya). And on the other hand, they listed five individual possessions or virtues: 1) absence of intolerance (Akrodha); 2) compassion or feeling for the other (Bhutadaya, Adroha); 3) knowledge (Jnana, Vidya); 4) freedom of thought and conscience (Satya, Sunrta); and 5) freedom from fear and frustration or despair (Pravrtti, Abhaya, Ihrti) (see further Puntambekar 200).
4. Islamic Tradition
6. The place of human rights in the Islamic tradition has been a subject of strong debate in the Western societies during the last decades. Historically, we cannot find precise equivalents to human rights in medieval jurisprudence (fiqh), though there are philosophical and theological concepts which can operate as a basis for the recognition of certain human rights (see Hashemi and Qureshi). In fact, sources for human rights can be found in the Qur’an, which has two words, adl and ishan, which express the idea of ‘equal justice’ or ‘balance’. Furthermore, it upholds the sanctity of life, the due respect to human beings, and the right to justice, and it includes passages recognizing the importance of basic goods such as freedom, knowledge, sustenance, work, privacy or honour (for a more detailed account, see Hassan 369 et seq.). Notwithstanding these important concepts, it is generally understood that the relationship between Islam and human rights is controversial and not univocal.
B. Historical Evolution
1. Civil and Political Rights
7. The closest precedents for modern declarations of rights are the English Petition of Rights (1628) and the Bill of Rights (1689). These documents can be viewed as ‘modern’ in the sense that they do not refer only to a privileged class or estate—as was the case, for example, with the Magna Carta (1215) (see also Magna Carta)—but to all English people. In contrast to modern natural law, however, these documents do not seek their legitimacy in human nature, but rather, they claim to reflect ‘the true, ancient and indubitable rights and liberties of the people of this kingdom’, that is, tradition.
8. According to the decisive studies by Georg Jellinek, the first legal recognition of an individual right in a strictly modern sense is the recognition of religious liberty in Rhode Island in 1636, an example that was closely followed by other colonies (see Jellinek Chapter 7). The first modern declarations of rights are those approved by the North American states at the beginning of the War of Independence, among which the Virginia Declaration of Rights (1776) holds a preeminent position. The Virginia Declaration had a critical influence on the drafting of the French Declaration of the Rights of Man and of the Citizen (1789) (see also, the French Declaration of the Rights of Man and of the Citizen), as well as on the Bill of Rights appended to the American Constitution in 1791. Nevertheless, the French Declaration did not limit its claims to a single country, but purported to be a model for the rest of humankind, as Art. 16 shows: ‘any society in which no provision is made for guaranteeing rights or for the separation of powers, has no constitution.’ In the 19th century, several bills of rights were included in the new constitutions of the old European countries and of the emerging Latin American states. The rights recognized in the liberal revolutions are the so-called civil and political rights, based on the principles of individual freedom and political equality of all citizens. Still, it has to be noted that the full recognition of political equality was not consolidated until universal suffrage was established in the 20th century.
2. Economic and Social Rights
10. Firstly, the so-called economic and social rights, which include basic economic aspects such as social security, work or fair wages (labour rights). These rights were first recognized in the Mexican Constitution of 1917 and a short time later in the Weimar Constitution (1919). They spread after the Second World War, but their legal effectiveness is usually more limited than that of the ‘classical’ civil liberties.
3. Third Generation Rights
11. More recently, the so-called third generation rights have been proposed. These are not, strictly speaking, individual rights, but collective ones, such as the right to a healthy environment (concept and types of environmental rights), the right to development, and the right to peace. These rights became increasingly acknowledged after the Stockholm Declaration (1972) and, as in the case of social and economic rights, their judicial enforceability usually requires prior statutory specification.
4. Recent Developments
(a) Enhanced and New Rights
12. Thirdly, since the 1960s, human rights courts have substantially enhanced the meaning of rights through interpretation: i) on the one hand, the demands of our information society have given rise to a need for new guarantees to protect privacy (eg to prevent unlawful recording or regulate the processing of personal data; data protection); ii) on the other hand, new rights have also emerged (ie abortion, euthanasia, same-sex marriage / registered partnership), connected with a liberal moral and political philosophy. The right to privacy has also been one of the main sources for the creation of these new rights (see Gómez Montoro 617–650), which have generated fierce controversies within various societies (contrast, ie, Dworkin (1996) 144–146; and Glendon (2007) 59–80).
(b) New Functions and Dimensions
13. Another important departure from the initial understanding of rights has been the emergence of new functions and dimensions connected even with the traditional liberal rights. In the 19th century’s liberal state, rights were considered as mere immunities against state interference. Following a well-known characterization by Carl Schmitt, in the ‘liberal-bourgeois state’ the fundamental rights delineated a ‘principle of distribution’ (Verteilungsprinzip) according to which ‘the freedom of the individual is, in principle, without limit, while the power of the state to intervene with this freedom is, in principle, limited’ (Schmitt 126). This unilateral conception of rights as ‘defence rights’ (Abwehrrechte) has evolved towards a wider conception, and new effects and functions have been admitted.
14. In several countries, rights are nowadays considered to bind not only the state, but also the individuals within their private relationships (the so-called Drittwirkung). This doctrine appeared initially in the Lüth Case (Ger) (1958) of the Federal Constitutional Court of Germany (Bundesverfassungsgericht), though it has been expanded to other countries (see, eg, Bilbao; Canaris). Obviously, not every right may be equally violated both by citizens and public authorities—the right to honour, for example, is easier to enforce against individuals than the right to habeas corpus, whose sole addressee is the state—but those rights which can be potentially violated by individuals may be applicable to private relations. In some countries, a further controversy exists whether fundamental rights should be directly applied (unmittelbare Drittwirkung) to private relationships (mainstream theory in Spain); or whether they should be indirectly applied (mittelbare Drittwirkung), that is, through an interpretation of the abstract clauses of private law according to the fundamental rights (mainstream theory in Germany).
(ii) Positive Obligations
15. A further development—related to the effect of rights in private relations—is that they do not only include spheres of immunity against the state (a ‘duty to respect’), but also positive obligations to protect them (the so-called grundrechtliche Schutzpflichten). Again, this fundamental rights function has been widely discussed in the German doctrine (for a comprehensive bibliographic account, see Simón Yarza (2012) 399–423), and it has been expanded to many other countries such as France, Portugal, and Spain (Callies 32–42; Szczekalla 917ss.).
C. Judicial Protection
16. The judicial protection of individual rights in the modern constitutional state has also experienced an important evolution since its initial recognition in the liberal revolutions.
17. In the 19th century, the judicial enforcement of the Bills of Rights, even against the legislator, was soon recognized in the United States (‘US’) (see eg Marbury v Madison Case (US) (1803)). Nevertheless, the ‘rights expansion’ did not take place until the 20th century. A crucial event which led to this expansion in the US was the approval of the Fourteenth Amendment after the Civil War. In effect, this amendment explicitly prohibited the states from depriving ‘any person of life, liberty, or property, without due process of law’. Up to that date, the Bill of Rights had exclusively bound the federal government. However, from the end of the 19th century, the ‘due process clause’ of the Fourteenth Amendment began to be deployed by the US Supreme Court to enforce the Bill of Rights against the states through an interpretive method which is commonly known as ‘incorporation doctrine’ (see eg Chicago, Burlington and Quincy Railroad Co v City of Chicago (1897) (US); Gitlow v New York (1925) (US); Palko v Connecticut (1937) (US)). As a consequence of this doctrine, the law of the states is nowadays bound by the Bill of Rights, and there are highly unified standards regarding the content of individual rights throughout the whole country (see further Nelson).
18. Under the influence of the French Revolution, European constitutionalism did not develop a judicial review system in the 19th century. Along this vein, the following statement by Émile Boutmy is very illustrative in the context of his famous controversy with George Jellinek:
For the French people, the Declaration is nothing but a rhetoric masterpiece; the Articles are barehanded, or just armed with their sole majesty, with the empire of truth about men. No court can enforce them as legal devices nor ground its judgements upon them. The French have written them as teachings for the whole world; by contrast, the American constituents promulgated the articles of their declarations for the utility and advantage of their citizens: there do we find the great difference both of tone and intention between both documents (Boutmy 139).
19. The debate regarding the scrutiny of legislation according to abstract rights clauses became an object of scholarly debate in Europe in the 20th century, during the inter-war period. One of the most relevant discussions took place in the third annual gathering of the Association of German Public Law Professors (Vereinigung der Deutschen Staatsrechtslehrer), celebrated in Münster in March of 1926. The subject under discussion was whether the principle of ‘equality before the law’ (Gleichheit vor dem Gesetz) contained a general ‘prohibition of arbitrariness’ (Willkürverbot) enforceable against the legislator. Several scholars defended the possibility of scrutinizing the content of legislation invoking abstract right-clauses like the equality principle. Such a position represented a decisive step for the enforcement of rights in Europe (for a detailed account of the debate and its influence in the European constitutional law, see Simón Yarza (2013) 93–104), a change that was consolidated by the European constitutional courts after the Second World War (see, eg, Südweststaat (1951) (Ger)).
20. The last factor that needs to be mentioned here is the universalization of rights. After the Second World War, the task was undertaken to conduct international relations on the basis of respect for human dignity as embodied in the Universal Declaration of Human Rights (1948). Since then, human rights treatises have proliferated both at the regional and international level. In particular, new human rights protection systems have appeared (the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), the American Convention on Human Rights (1969), the African Charter on Human and Peoples' Rights (1981)). The courts responsible for enforcing these conventions have been extremely influential in the interpretation of national constitutions, and therefore in the universalization of the general understanding of human rights. Thus, the current meaning of individual rights is deeply conditioned by international practice.
E. Constitutions Analysed
21. In the following, some of the most relevant constitutional texts will be analysed from the perspective of their protection of individual rights. The selection of texts has been made according to criteria of historical importance, originality and geographical scope.
22. From a historical point of view, the two main declarations of rights are, without any doubt, the US Bill of Rights and the French Declaration of the Rights of Man and of the Citizen.
23. As a post-war constitutional example, explicitly founded upon human dignity, the German Basic Law (Grundgesetz) deserves special attention, and its influence on subsequent constitutions has also been considerable.
24. The Mexican Constitution also has a special historical importance, since it was a pioneer in incorporating a catalogue of social rights and special proceedings for the protection of constitutional rights.
25. For several reasons, a particular reference will be made to the Commonwealth model of bill of rights. This model constitutes a singular system which can be situated between judicial review and parliamentary sovereignty. It has been adopted by several countries, and has given rise to a profound debate upon the relations between rights, rule of law and democratic self-government.
26. A reference to the Constitution of Bolivia is also included. This text—together with other Latin American constitutions (eg, Ecuador or Brazil)—shows the increasing (and perhaps excessive) power of the rights discourse.
27. It is important to make a reference to those European post-communist countries that, after the fall of the Berlin wall, have approved constitutions including bills of rights and judicial review systems (communism).
28. Approved in 1950, the Constitution of India includes a bill of civil rights that has had a great impact in the transformation of this country. Due to its age and its influence within the Asian world, it represents a very interesting case.
F. Comparative Description
30. Almost all the constitutions of the world recognize a catalogue of rights. Thus, it is simply impossible to conduct a detailed analysis of the protection of individual rights throughout the world. There are, however, particular features that single out different kinds of bills of rights and allow us to make a useful classification.
1. United States of America
31. First, it is important to refer to the most ‘classic’ bills of rights of comparative constitutionalism, that is, to the US Bill of Rights and the Declaration of the Rights of Man and of the Citizen.
32. The absence of a bill of rights in the US Constitution initially posed a threat to the whole constitutional project. Against the reluctance of the so-called Federalists, the delegates from Massachusetts and Virginia conditioned their ratification of the constitution on the subsequent enactment of a bill of rights. The US Bill of Rights was approved in 1791 as the first ten amendments of the US Constitution. Notwithstanding some rights which were closely linked to particular historical circumstances—such as the right to bear arms (Amendment II) or the prohibition on quartering soldiers in any house in times of peace (Amendment III)—the Bill of Rights includes the most classic rights of the constitutional tradition: religious freedom, freedom of speech, press and assembly (Amendment I); the protection of the domicile (Amendment IV); the main procedural rights (Amendment V–VII); and the prohibition of ‘cruel and unusual punishment’ (Amendment VIII). After the Civil War, between 1865 and 1870, the list of rights protected was completed with the so-called Civil War Amendments, which granted to all citizens (among other rights) ‘the equal protection of the laws’ (Amendment XIV).
33. France is also a very important model, since the Declaration of the Rights of Man and of the Citizen is not only one of the oldest bills of rights but, perhaps, the most emblematic. Greatly influenced by the bills of rights of the recently created American states, the French Declaration has become, together with the US Bill of Rights, the classic model of a rights declaration. Thus, it includes the main civil rights: right to liberty (Arts 2 and 4), the legality principle (Arts 7 and 8), the presumption of innocence (Art. 9), freedom of thought (Art. 10), freedom of expression (Art. 11) and the right to property (Art. 17). In addition, the Declaration is not just a historical document but has legal force. The Preamble of the Constitution of the French Republic: 28 September 1958 (Fr) reaffirms the commitment of the French people ‘to the Rights of Man and to the principle of national sovereignty as defined by the Declaration of 1789’. Since 1971, the Constitutional Council of France (Conseil Constitutionnel) has conferred normative value upon these references in the Preamble, with the consequence that the Council is entitled to enforce the Declaration of 1789 (Decision 71-44 DC (16 July 1971) (Fr); and Decision 73-51 DC (27 December 1973) (Fr)).
34. Another important bill of rights is included in the German Basic Law, which reflects the constitutional spirit that followed the Second World War.
35. Throughout the 19th century, constitutional rights were conceived as a strict line that separated the scope of public power and the free development of individuals. Under this conception, fundamental rights defined spheres of life that should be removed from any public interference. This liberal understanding of rights was based upon a contractualist philosophical foundation of power that can scarcely capture the deepest foundations of rights. After the horrors of Nazism and the Second World War, the German Basic Law started with a direct appeal to human dignity which is indispensable to understand those true foundations: ‘Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority’ (Art. 1 Basic Law: 23 May 1949 (Ger)). This clause has had an enormous impact on later constitutions (eg, Art. 10.1 of the Constitution of the Kingdom of Spain: 6 December 1978 (Spain); Art. 7 of the Federal Constitution of the Swiss Confederation: 18 April 1999 (Switz); Art. 28 of the Constitution of the Republic of Kenya: 6 May 2010 (Kenya); etc) and on Art. 1 of the Charter of Fundamental Rights of the European Union (2000).
36. In close connection with the principle of human dignity (dignity and autonomy of individuals), the German Basic Law recognized for the first time, together with the right to life, a right to ‘physical integrity’ (Art. 2.2). Besides, the German Basic Law contains a modern catalogue of civil rights, which includes the free development of the personality (Art. 2.1), the right to life (Art. 2.2), the principle of equality before the law (Art. 3), the freedom of conscience and religion or belief (Art. 4), the freedom of expression (Art. 5), the right to marry and the natural right of parents to the care and upbringing of children (Art. 6; protection of the family), the right to education and the freedom of education (Art. 7), the freedom of assembly (Art. 8) and association (Art. 9), the right to privacy (Art. 10), the freedom of movement (Art. 11), the freedom of occupation or profession (Art. 12), the inviolability of the home (Art. 13), the right to property (Art. 14) and the right to petition (Art. 17).
37. In contrast with other modern catalogues of rights, the German constituent did not include a detailed list of social rights. The constituent wanted to assure the full practicability and enforceability of the whole bill of rights, avoiding the difficulties produced during the Weimar Republic. Nevertheless, Art. 20 of the Basic Law included the so-called ‘social state principle’ (Sozialstaatsprinzip; social or welfare state), a clause which operates to some extent as a substitute for economic and social rights (regarding the lack of a social rights catalogue in Germany and the role played by the Sozialstaatsprinzip, see further Isensee 368ss; and Zacher 659ss).
38. In Latin America, it is appropriate to mention first the Political Constitution of the United Mexican States: 5 February 1917 (Mex), which was a pioneer in the protection of individual rights for at least two reasons.
39. Firstly, it was the first constitution (closely followed by the Weimar Constitution) to incorporate a catalogue of economic and social rights (second generation of rights). The social rights recognized in 1917 were certainly few in comparison with their subsequent proliferation, and they mainly dealt with those marginalized groups that had previously supported the Mexican Revolution. The social rights initially recognized by the Mexican Constitution were the right to receive education (Art. 3), the right of the peasants to work their lands (Art. 27), and several rights related to working conditions. In the last few decades, several new guarantees have been included, such as the right to health (Art. 4, para. 3), the right to a healthy environment (Art. 4, para. 4), or the right to enjoy dignified and decorous housing (Art. 4, para. 5; right to housing). Among the social rights, the Mexican Constitution also includes the rights of those groups that require special protection, such as the rights of children (Art. 4, paras 6–8) or the rights of consumers (Art. 28; consumer protection).
40. It remains under dispute the extent to which these social rights are truly effective, since their implementation usually depends on the budgetary possibilities of the state. Certainly, several civil rights are also dependent on budget resources (eg, the right to a fair trial), but the catalogue of social rights includes a comprehensive range of economic claims. Actually, the Mexican Constitution does not make their legal effectiveness conditional on their further legislative development, so both civil and social rights can be invoked before the courts. Nevertheless, the Supreme Court of Mexico (Suprema Corte de Justicia de la Nación) has resolved few cases facing serious social rights arguments (Cossio Díaz 130), and it has declared itself incompetent to issue strong decisions concerning the distribution of the public budget (see Constitutional Controversy 109/2004 (22 December 2004); see further Cossio Díaz 147–148). In any case, there are some decisions conferring a minimal content on basic social rights such as the right to health (eg, Amparo under Review 2231/97 (25 October 1999); and Amparo under Review 220/2008 (19 June 2008); see further Carpizo 1087–1088).
41. Secondly, another important feature of the Mexican Constitution of 1917 is the so-called trial of amparo for the protection of individual rights (Arts 103 and 107). Such proceedings—whose historical antecedents date back to the Constitution of the Yucatan Peninsula, of 1836—have the specific purpose of protecting the individual rights recognized in the Constitution. A complaint can be filed by any person affected by such an infringement, and similar procedures have been recognized in several countries. In Spain, the Republican Constitution of 1931 included the ‘trial of amparo’ before the Court of Constitutional Guarantees as a means for protecting the citizens against violations of individual rights on the part of any public authority. Since then, similar legal proceedings have been included in several countries of Latin America (Art. 43 Constitution of the Argentine Nation: 23 August 1994 (Arg); the mandado de segurança of Art. 5, LXIV and LXX Constitution of the Federative Republic of Brazil: 5 October 1988 (Braz)); Europe (the Verfassungsbeschwerde of Art. 93.1, para. 4, Basic Law of the Republic of Germany; Art. 53.2 Constitution of the Kingdom of Spain; Art. 144 Federal Constitutional Law of Austria: 25 July 1920 (Austria); etc); Asia (Art. 111.1 Constitution of the Republic of Korea: 12 July 1948 (S Kor); etc); and Africa (Art. 19 Constitution of the Republic of Cape Verde: 25 September 1992 (Cape Verde); etc).
5. United Kingdom
42. In the United Kingdom (‘UK’) and in other countries influenced by the British constitutional model (ie New Zealand, Canada and Australia), the existence of a bill of rights enforceable even against the legislator is relatively recent. As a consequence of the Glorious Revolution (1688), the Bill of Rights (1689) first proclaimed the rights of all Englishmen, and at the same time, established the basis for the principle of parliamentary sovereignty. Even John Locke, who was perhaps the most influential proponent of the view that the legitimacy of power depends upon the protection of the natural rights of individuals, simultaneously argued for the supremacy of Parliament, and also contended that any effort by Parliament to transfer its power to others would itself be illegitimate (Locke para. 212). Nevertheless, at the end of the 20th century, as a consequence of the spread of bills of rights after the Second World War and, above all, the influence of the Council of Europe (COE) and the European Court of Human Rights (ECtHR), the need for a bill of rights enforceable against parliament became the subject of heated debate in the UK. In the end, the Human Rights Act was adopted in 1998, and came into force on 2 October 2000. The English Human Rights Act is a mimetic translation of most of the rights included in the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950) (Arts 2–12 and 14), as well as Arts 1–3 of the 1952 Council of Europe (‘COE’) Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms and Art. 1 of the 2002 COE Protocol No 13 to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning the Abolition of the Death Penalty in All Circumstances.
43. These developments in the UK are not exceptional. On the contrary, other countries within the Commonwealth have also adopted a bill of rights that places restrictions upon the legislator. The first of them was Canada, which passed its first bill of rights with constitutional status in 1982 (Canadian Constitution Act, 1982). Afterwards, the same path was taken by New Zealand (Bill of Rights Act (No. 109 of 1990): 28 August 1990 (NZ)), the Australian Capital Territory (Australian Capital Territory Human Rights Act 2004) and the state of Victoria, also in Australia (Victorian Charter of Rights and Responsibilities Act 2006). By passing these bills of rights, the above mentioned countries departed from the traditional strict principle of parliamentary sovereignty and adopted a singular regime in which the legislator has the power to create and modify rights through ordinary statutes, and once these have been created, judges can interpret and review statutory law according to these pre-existing rights (Gardbaum 1–2 and 21–46).
6. Central and Eastern Europe
44. It is also worth mentioning the emergence of a legal culture focused on rights in Central and Eastern Europe since the end of the Cold War. All of the European post-Communist countries have approved constitutions that include both a bill of rights and a judicial review system (Sadurski (2002) 163). An interesting example in this sense is provided by the Czech Republic, whose Charter of Fundamental Rights and Basic Freedoms (1992) belongs to the constitutional system according to Art. 112 of the Constitution of the Czech Republic: 16 December 1992 (Czech). The Charter includes a broad and modern list of rights, divided into five groups: ‘civil rights’ (Arts 5–16); ‘rights of the political life’ (Arts 17–23); ‘minority rights’ (Arts 24–25); ‘economic, social, and cultural rights’ (Arts 26–35); and ‘the right to judicial and other legal protection’ (Arts 36–40). Notwithstanding the comprehensive character of this catalogue, it should be noted that—as it happens in other countries—most of the social and economic rights ‘may be claimed only within the confines of the laws implementing these provisions’ (Art. 41.1).
45. After the break-up of the USSR, the constitutional process of the former Soviet republics was accompanied by a process of incorporation to the Council of Europe: Hungary (6 November 1990); Poland (26 November 1991); Bulgaria (7 May 1992); Estonia, Lithuania and Slovenia (14 May 1993); Czech Republic and Slovakia (30 June 1993); Romania (7 October 1993); etc. This fact turned to be decisive for the development of their rights’ jurisprudence, a task in which the European Court of Human Rights has had a decisive influence (Sadurski (2012) 1 ss.). In the Czech Republic, for instance, the European Convention enjoys a very special significance by virtue of Art. 10 of the Constitution, and it is considered one of the pillars of fundamental rights protection (Grote (2007) 13).
46. More recently, a new approach has been adopted to the enforceability of rights as a consequence of the Constitution of the Pluri-National State of Bolivia: 25 January 2009 (Bol).
47. The main novelty of this constitution is its extraordinarily broad bill of rights (which includes all kinds of rights from the first, second and third generation), as well as the full enforceability of every right. The bill of rights has one hundred articles (Arts 13–107). Together with classic individual rights, there is detailed regulation of social rights such as the right to health and social security (Arts 35–45), the right to work and employment (Arts 46–55) or the right to education (Arts 77–97). Likewise, it includes several collective rights such as the right to the environment (Arts 33–34), and to cultural diversity (Arts 98–102); as well as the rights of vulnerable groups like indigenous communities (Arts 30–32), children and adolescents (Arts 58–61), families (Arts 62–66), senior citizens (Arts 67–69), disabled people (Arts 70–72), persons deprived of liberty (Arts 73–74), and users and consumers (Arts 75–76). Some of the rights are highly regulated, like the right to social security (Arts 35–45), the right to work (Arts 46–55), and the right to education (Arts 77–97).
48. The great legal force accorded to every right is also noteworthy. According to Art. 109, ‘all the rights recognized in the Constitution are directly applicable and protected by equal guarantees’. The direct guarantee of all rights through the so-called ‘action of unconstitutionality’ (Chapter 2, Section 4) contrasts with the more limited guarantees traditionally conferred on social, economic and cultural rights. The Plurinational Constitutional Court of Bolivia has confirmed this full enforceability of all the fundamental rights in several judgements (eg, Decision 121/201 (2 May 2012) (Bol)). In its Decision 0102/2012, regarding the right to perceive a prenatal and lactation food-subsidy, the Court stated that such a right ‘belongs to the political Constitution of the State and should be guaranteed regardless its being included in the budget’ (Decision 0102/2012 (23 April 2012) (Bol); Decision 0776/2012 (13 August 2012) (Bol); Decision 0084/2012 (16 April 2012) (Bol), regarding the right to water).
49. The Indian bill of rights also deserves a special mention due to the influence of India in Asia and the age of its Constitution (Constitution of the Republic of India: 26 January 1950 (India)), which entered into force in 26 January 1950. The Indian bill of rights is contained in Part III of the Constitution (Arts 12–35), and it basically includes the classical civil rights of most liberal democratic regimes: the principle of equality and certain concretizations of this principle (Arts 14–18); the freedom of speech, assembly, association, circulation and occupation (Art. 19); the right to the protection in respect of conviction for offenses (Art. 20); the right to the protection of life and personal liberty (Art. 21); the right to the protection against unlawful arrest and detention (Art. 22); the prohibition of traffic with human beings and of forced labour (Art. 23); the prohibition of employment of children in factories and other hazardous occupations (Art. 24); the right to freedom of conscience and religion (Arts 25–28); and the protection of interests of minorities, as well as the right of minorities to establish and administer educational institutions of their choice (Arts 29–30). Through the 86th Amendment Act (Constitution of India (Eighty-sixth Amendment) Act: 12 December 2002 (India)), the right to education (which is a social right included in many constitutions) was introduced.
50. According to Art. 13 of the Indian Constitution, all laws inconsistent with or in derogation of the fundamental rights are void. The Supreme Court of India is entrusted with the final saying concerning judicial review of legislation (see Arts 131–136), and it has played a crucial role in determining the meaning of the bill of rights. In the Minerva Mills Case (India), the Supreme Court stated that the fundamental rights belong to the ‘basic structure of the Constitution’ which is even beyond the amending power of Parliament. In several landmark cases, the Court has placed a special importance on the freedom of speech against the government (see eg Maneka Gandhi v Union of India (1978) (India); and R Rajagopal amd RR Gopal and Another v State of Tamil Nadu and Others, Writ Petition (1994) (India)). State secularism and religious freedom have also a very important role in a multi-religious State like India, and they are interpreted as opening the way to a wide variety of religions. This broad tolerance with religious practices may be at odds with the protection of women who are discriminated within their religion (see Saroj Rani v Sudarshan Kumar (1984) (India)). In some pronouncements, however, the Supreme Court has ruled against this sort of discrimination (see ie, Mohd Ahmed Khan v Shah Bano Begum And Others (1985) (India), regarding the ‘right to alimony’ of divorced women).
9. South Africa
51. Finally, the Constitution of the Republic of South Africa: 16 December 1996 (S Afr) constitutes a very interesting constitutional example of the African continent. Promulgated by Nelson Mandela and in force since 4 February 1997, it includes a comprehensive bill of civil, political and economic rights, all of them enforceable. The Constitutional Court was established under the interim Constitution of 1993, and it has since played a significant role in the development of rights. In an early decision of 6 June 1995, the death penalty was banned by the Court, even though there was not an explicit mention to it in the Constitution (S v Makwanyane and Another (CCT3/94)  (S Afr)).
52. After the approval of the new Constitution, the Court has continued to be an active player in the protection of rights. Regarding the social and economic rights, it has said that the extent of their enforceability ‘must be carefully explored on a case-by-case basis’ (Government of the Republic of South Africa v Grootboom Case (S Afr)). Among its most important judgements, it is worth mentioning its decision recognizing the right to access to HIV/AIDS treatment (Minister of Health v Treatment Action Campaign (No 1) (2002) (S Afr)). More recently, and not without controversy, new rights have been created by the Court, such as the right to same-sex marriage (Minister of Home Affairs and Another v Fourie and Another; Lesbian and Gay Equality Project and Others v Minister of Home Affairs and Others (2005)).
53. The spread of constitutionalism in the 20th century has developed in parallel to heightened recognition of individual rights. Countries of the five continents have developed or are developing a rights-culture, usually under the impulse of their supreme or constitutional courts. Notwithstanding this fact, the legitimating force of rights is not exempt from certain risks:
54. Firstly, the rights refer mainly to individual powers, and they need to be supplemented by other categories such as civic duties or the common good. An excessive focus of political and constitutional discourses on rights generates two problems:
55. On the one hand, it runs the risk of propagating an overly individualistic vision of society. As a reaction to the individualism implicit in the discourse on rights, influential communitarian schools of thought have appeared which underline the primacy of the common good.
56. The legitimating force of rights has also meant that many collective goods which transcend the individual (environment, cultural heritage, development, etc) are now included within the category of rights. Nevertheless, collective goods are not adequately protected from an individual status libertatis, but from the status procuratoris of those who represent the community.
57. Secondly, the excessive proliferation of fully enforceable catalogues of new rights—most notably in Bolivia—can generate promises which are difficult to fulfil. Budgetary limitations represent an inescapable boundary for the implementation of economic rights, and the decision regarding the proper distribution of the budget is a political decision. In this sense, it seems prudent to distinguish the genuine (and directly enforceable) fundamental rights from mere programmatic principles.
58. Finally, the judicial review of legislation leads to an unavoidable tension between constitutional justice and democracy (majoritarianism). This conflict or tension derives from the fact that the constitutional clauses embodying ‘rights’ are extremely abstract and their proper interpretation is a divisive political issue regarding many social and moral problems. By giving the courts the last word on these issues, the democratic judgment of the parliament is impaired. It is hardly deniable that the attempt to put an end to unresolved moral debates by appealing to rights creates the risk of impoverishing political discourse and curtailing democratic deliberation. In this field, international courts should be especially cautious, since they owe respect to the legitimate political differences and margins of appreciation of the nations within their jurisdiction.
59. The debate upon judicial review was triggered in the United States of America by the publication of Alexander Bickel’s work: The Least Dangerous Branch, and it is still one of the most disputed issues in the American Constitutional Theory. In England, the controversy was mainly focused on the risks of judicial review both for democracy and the rule of law, and the debate involved some of the most prominent English-speaking legal philosophers (eg, Finnis, Dworkin or Waldron).
60. In several European countries with a long democratic tradition, it is not allowed to review parliamentary legislation against the Constitution. This is notably the case in Switzerland (see Art. 190 Federal Constitution of the Swiss Confederation) and the Netherlands (Art. 120 Constitution of the Kingdom of the Netherlands: 17 February 1983 (Neth)). Similarly, in the Nordic countries judicial review is an uncommon practice (see Hirschl).
61. Strong objections to judicial review have been placed too in some countries under British influence, where ‘parliamentary sovereignty’ is traditionally considered to be a core constitutional principle. Certainly, not all the ‘commonwealth’ countries share this reluctance towards judicial review (ie judicial review is accepted and actively exercised in South Africa), though many of them do.
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