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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Legal Effect of Constitutions

Elena Bindi, Mario Perini

Subject(s):
Constitutional interpretation — Constitutional processes — Principles and objectives of constitutions — Comparative constitutional law — Constitutions and amendments — Rights — The state

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.

A.  Definition

1.  Core Meaning

1.  Legal effect refers to the different legal effects that constitutional norms may generate in a specific legal system. These are distinguished from the political, social, and psychological effects that constitutions may have on individuals and society at large. Both these latter effects and legal effects may affect human actions to some extent, but only legal effects constitute a legal basis for the acts, actions, and conduct of public authorities. Constitutional norms taken into consideration are only those inspired by constitutionalism—that is, constitutions intended to protect the rights and liberties of individuals.

2.  List of Concepts

(a)  Constitutional Policies

2.  Constitutional policies refer to those constitutional norms that establish the programmes or long-term objectives which are to be achieved by public authorities.

(b)  Constitutional Principles

3.  Constitutional principles (principles and objectives of constitutions) refer to those constitutional norms which identify—using open texture language—the values to be protected from the interference of both public authorities and private individuals.

(c)  Constitutional Rules

4.  Constitutional rules refer to those constitutional norms that establish—with precise and detailed language—a legal effect when certain prerequisites are fulfilled.

(d)  Ascribing Effect

5.  Ascribing effect refers to the legal effect generated by certain constitutional norms which ascribe to some authorities legal power over a given matter.

(e)  Unconstitutionality Effect

6.  Unconstitutionality effect refers to the legal effect generated by constitutional norms, consisting of rendering unlawful, invalid, of no legal effect, or void those acts or behaviours of public authorities which are not compliant with constitutional norms.

(f)  Indirect (Horizontal or Vertical) Effect

7.  Indirect (horizontal or vertical) effect refers to the legal effect generated by constitutional norms consisting of a duty of public authorities—or, more frequently, of a judge—to interpret sub-constitutional law consistently and coherently with the policies, principles, and spirit of the constitution (interpretation of constitutions). This obligation concerns all cases in which sub-constitutional law must be applied: between public authorities, between private parties and public authorities, and between private parties. German-speaking countries use the term verfassungskonforme Auslegung; in Italy, (obbligo di) interpretazione adeguatrice.

(g)  Conformative Effect

8.  Conformative effect refers to the legal effect generated by constitutional norms—especially but not only policies and principles—consisting of a duty of public authorities to themselves act consistently and coherently with constitutional norms.

(h)  Direct (Horizontal) Effect

9.  Direct (horizontal) effect (horizontal application) refers to the legal effect generated by constitutional norms which impose a duty on a private individual with regard to another private individual. In German-speaking countries, the terms used are unmittelbare Anwendbarkeit and Drittwirkung.

(i)  Constitutional Rights

10.  In the present context, constitutional rights refer to all those interests, entitlements, and expectations conferred onto individuals by constitutional norms.

B.  Evolution and Analysis of Constitutions

1.  Evolution

11.  The legal effects of constitutions (definition of constitutions) are linked in a two-way relationship with the evolution of the concepts of constitution and constitutionalism. Human societies have always believed that there were superior fundamental laws (see Sophocles, Antigone) and, in the Late Middle Ages, the belief that these superior norms had not only merely moral but also political superiority spread increasingly widely (see Gough). Over the centuries this superiority has sometimes been declared judicially, such as in two famous rulings by Justice Coke (see Prohibitions Del Roy (1658) (UK) and Thomas Bonham v College of Physicians (1610) (UK)), or in the refusals by the French Parlements—and in particular that of Paris—to register Turgot’s edict for the abolition of the guilds (1776) and the economic reforms attempted by the monarchy, which led first to the ‘aristocratic revolution of 1787’ (see Soboul, chapter 3) and then to the Revolution of 1789.

12.  The real turning point was reached when (superior) legal force was ascribed to constitutional texts in order to protect individual liberties and rights. This took place rather quietly, on the (at the time) outskirts of the world, and perhaps for more political than legal reasons (Marbury v Madison Case (US)). However, after more than one century the idea was fully theorised, and in that part of the world more oriented towards theoretical speculation (see Kelsen (1934); Kägi and Kelsen (1945), chapter XI). Moreover, only after World War II was this idea widely implemented, based on the belief that any power—even that of parliaments, which by that time had become the expression of the entire population—should be subject to legal limitation in order to protect the rights and liberties of individuals. The legal force of constitutions examined here was thus accepted and implemented.

13.  Many post-war constitutions contain provisions intended to reaffirm their legal effects. The older ones contain only general and loose provisions in this regard, as in the case of the Constitution of the Italian Republic: 22 December 1947, Art. 1 para. 2 (It) and the Constitution of the Republic of India 26 January 1950 Art. 13 (India); while the more recent ones are increasingly specific, such as the Constitution of the Kingdom of Spain: 6 December 1978, Art. 9 para. 1 (Spain), the Constitution of Canada: the Constitution Acts 1867 to 1982, s 52 (Can), and the Constitution of the Republic of South Africa: 11 October 1996, s 2 (S Afr).

2.  Analysed Constitutions

14.  The scope of this paper regards constitutions that can be categorised within liberal (liberalism) and democratic (representative democracy) states (see Mirkine-Guetzévitch). There is a dual reason for this delimitation. First of all, it is commonly, though not unanimously, believed that a comparison can make sense only between similar legal systems—ie those which share the same set of fundamental values. Secondly, because the purpose of this analysis is to examine the legal force of constitutional norms, we need to limit our analysis to those constitutions inspired by the principle according to which any political power must be responsible and limited by rules in order to be legitimate and therefore be obeyed by the people, distinguishing itself from bare force. The very aim of legal limitation of powers is the protection of rights and liberties of individuals: thus only constitutions which operate in this particular framework will be analysed. The idea of the constitution as legal limitation to (all) powers was brilliantly expressed at the very dawn of constitutionalism in the landmark decision Marbury v Madison (US), which affirms that the distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.

15.  Furthermore, some of those constitutions traditionally categorised as political (De Maistre) will be analysed if they belong to liberal and democratic states. Indeed, these constitutions may produce ‘legal effects’ (see Jaconelli), if by this we mean that when they are obeyed (rather than disobeyed, rejected, or changed) they are believed to formulate valid rules of obligation (Marshall 210), irrespective of any theoretical definition of what the law is. Furthermore, political constitutions, and those part of legal constitutions with only ‘political’ effects (eg preamble), are certainly normative in their own nature—ie they produce normative effects, even if not legal ones. The constitution of any liberal democracy contains political and legal limitations to powers: the issue is not whether a constitution can be classified as political or legal, but whether it is actually able to create binding effects on public and private parties.

16.  Besides, if we believe that the legal effects of a constitution depend on the possibility for judges to apply its norms, then we have to admit that political constitutions—or better, those parts of constitutions that are political in nature—are also often taken into consideration by judges. The United Kingdom is a good representative in this respect. It is traditionally considered to be governed by a ‘political constitution’ (see Griffith; Gee; Bellamy) with no written text (codified / uncodified constitutions)—although large parts of British constitutional law are increasingly written down in statutes of parliament—and no binding legal force (see Adegbenro v Akintola & Aderemi), at least for its fundamental organisational part consisting of the conventions of the constitution (see Dicey; Jennings, 85 et seq, 103 and 330 et seq; Mackintosh; Munro; Marshall; Grottanelli de’ Santi (1984)). In the United Kingdom, and in other Commonwealth Member States which are similar to the UK, even if the courts normally do not directly enforce conventions (ie a political constitution has no direct legal effects), they do recognize them. This can be clearly noticed in some cases (Supreme Court of Canada, Reference re Amendment of the Constitution of Canada (1981) (Can); British High Court, Queen Bench Division, Attorney-General v Jonathan Cape Ltd and others Attorney-General v Times Newspapers Ltd (1975) (UK)).

17.  Furthermore, it can easily be the case that, at a certain point, people begin to believe that the political part of a constitution generates direct legal effects. This is the case of the preamble to the Constitution of the French Republic: 28 September 1958 (Fr), which for a great many years was deemed lacking all legal force, until the Constitutional Council of France (Conseil Constitutionnel) decreed its direct enforceability (Decision No 71/44 (16 July 1971) (Fr)).

18.  These considerations may justify including in the analysis those constitutions and countries, like the United Kingdom, which are traditionally considered to be governed by political constitutions, and those parts of constitutions that are believed to be political in nature, for example many preambles.

C.  Comparative Description and Assessment

1.  The Principle of Constitutionality

19.  The effects of constitutional norms depend on the characteristics of contemporary constitutions.

20.  It is indisputable that contemporary constitutions contain norms. However, constitutions differ widely with regard to the norms that they contain. Indeed, constitutions may contain many provisions or few provisions; they may be very general or quite specific; they may establish general principles to be implemented (implementing legislation) or regulate a subject in detail. Although they express norms, they do not have the same typological characteristics, do not perform the same functions, and therefore do not produce the same legal effects.

21.  The different features of constitutional norms depend on the functions that modern constitutions perform (functions of constitutions). They establish vertical relations between the state and citizen, introduce horizontal relations amongst citizens, draft social policies to be implemented, and establish principles to be balanced with other constitutional principles.

22.  Despite this diversity, constitutions do share a common feature, which is their superiority to statute law and other primary sources of law.

23.  This supremacy / primacy is formal as well as substantial. It is formal because modern constitutions usually establish amendment procedures (amendment or revision of constitutions), which differ from the ordinary procedure for approving legislative acts (lawmaking and legislation; legislative procedure). As a result, the force of constitutional norms is superior to that of statutes, and derives from their different form. And it is substantial, because the supremacy of the constitution derives from being the expression of the constituent power (pouvoir constituant), which is unique and unrepeatable. As a result, the normative acts issued by state authorities which are created by constitutional norms and derive their validity from them are therefore inferior to the constitution—indeed, the constitution is the source of their authority. The superiority of constitutions depends on their substantial nature, and not only on their form.

24.  These concepts constitute the core of the ‘principle of constitutionality’, which can be considered the extension of the rule of law and the legality principle, bringing the Staatsrecht to completion: ie all legal acts shall be subject to constitutional norms. As legislative acts are subject to a higher source (the constitution), they may be reviewed with respect to the norms entrenched in the constitution.

25.  The principle of constitutionality requires that there be no contradiction between legislative acts and constitutional norms. The principle of no contradiction can be understood in a formal sense as well as in a substantial one.

26.  In a formal sense, the principle of no contradiction implies the consistency between the procedural arrangement followed to approve a normative act and the procedural arrangement set forth in the constitution. In this formal sense, the principle of constitutionality has a positive meaning because the procedure for the approval of a normative act must positively respect the provisions of the constitution.

27.  In a substantial sense, the principle of no contradiction implies that a normative act must be consistent with the content of the constitution. Contradiction between the content of the constitution and that of a normative act determines the unconstitutionality of the latter. In this substantive sense, the principle of constitutionality has a negative meaning, because the normative acts which implement the constitution must be consistent with it. In this regard, the constitution constitutes an outer boundary to other normative acts and, especially, to legislative ones. However, legislative acts usually remain free to pursue whatever end they please, being limited only by the external constitutional boundaries, except when the constitution itself provides a goal to fulfil.

2.  Different Types of Norms

(a)  Policies

28.  The principle of constitutionality manifests itself in many different ways depending on the characteristics of the constitutional norms.

29.  Constitutions may contain policies. Policies are norms which establish an end, often quite general, that has to be pursued by some public authorities. We may agree on the following definition: policy is that kind of standard that sets out a goal to be reached, generally an improvement in some economic, political, or social feature of the community (Dworkin (1977) 22; see also Dworkin (1985) 72–103). These norms are generally meant to increase the well-being of the community as a whole, while principles, as we will see, have to do with the rights of individuals.

30.  Constitutions of welfare states (social or welfare state) and of those countries of more recent democratization contain many policies. Indeed, these constitutions aim to change certain deficiencies in the society which they identify. Unlike nineteenth-century constitutions, which usually assumed that society was a static element that could not be changed by constitutional norms, these more recent ones intend to change societies deeply, and they need structures and public procedures in order to achieve the ends the constitution determines. In heterogeneous societies and pluralist democracies such as the ones in which many currently live, the idea is largely accepted that the state may change society, although the extent and area of the intervention depend on the cultural background of each country.

31.  Admittedly, these norms already appeared in the very first modern constitutions. One example is the preamble to the Constitution of the United States of America: 17 September 1787 (US), which clearly expresses a political and social project to be achieved. Although it has never been used as the ratio decidendi of a judicial decision, it has been used in several judgements to interpret the rest of the constitution (Legal Tender Cases (1871) (US) 531–532) as well as primary legislation (Ellis v City of Grand Rapids (1966) (US) 572 and 574). Moreover, the seven original articles of the US constitution create the different branches of government and establish their reciprocal relationships, using ‘shall’—which seems to give them a clearly policy-oriented meaning (see Tillman, Tillman, 453–458)—in order to outline the new social/political/institutional structure to be achieved and not in order to codify and rationalise the existing one, as occurred in ancien régime constitutions.

32.  The following constitutions contain a growing number of policies which express an increasing will to change institutions and shape new social models. These policy-norms become more and more detailed. Clear examples can be found in the Constitution of Canada (eg, Preamble to the Constitution Act 1867, which was considered legally binding in Reference re Remuneration of Judges of the Provincial Court (1997) (Can); Arts 27 and 36, Constitution Act 1982), the Constitution of the Federal Republic of Germany: 23 May 1949 (Ger) (eg Arts 20a, 23), the Federal Constitution of the Swiss Confederation: 18 April 1999 (Switz) (eg Art. 2), the Constitution of the Italian Republic (eg Art. 3, paras 2, and Art. 4, which were considered legally binding with Decision No 1/1956 (14 June 1956) (It)), the Constitution of Spain (eg Art. 9 para. 2), the Constitution of France (Preamble, which was considered legally binding with Decision No 71/44 (16 July 1971) (Fr)), the Coordinated Constitution of the Kingdom of Belgium: 17 February 1994 (Belg) (eg Art. 7bis), the Constitution of the Bolivarian Republic of Venezuela: 15 December 1999 (Venez) (eg Art. 3), the Constitution of India (eg Arts 16, 21A and Part IV), the Constitution of South Africa (eg, Preamble), the Constitution of Tunisia (2014) (eg Arts 8, 10, 12, 14, 15), and Israel’s Basic Law: Human Dignity and Liberty: 17 March 1992 (Isr) (eg Art. 1).

33.  Sometimes these policies may contain actual orders, mostly directed towards the legislature, as in the case of the obligation of ensuring equality between legitimate and natural children (Art. 6 para. 5, Basic Law for the Federal Republic of Germany: 23 May 1949; Art. 30 para. 3, Italian Constitution); or guaranteeing the rights and liberties of ideological and philosophical minorities (Art. 11, Belgian Constitution); or the different objectives established in Part IV of the Indian Constitution.

34.  However, these policy-norms are usually quite general and it is not easy to derive specific rules from them. Even if they are usually considered legally binding, their linguistic structure can rarely give rise to a legally sanctionable obligation to implement the policy they express. Even if the goal is quite detailed, many different ways and means can be used to achieve it.

35.  These policies do have legal effects when entrenched in a constitution. According to neo-constitutionalism, the meaning of constitutional and legislative provisions must be determined consistently and coherently with the values expressed in constitutional policies (and principles). One of the main legal effects of a policy is thus to bind the interpreter to interpret all legal provisions he or she has to apply in a way which is consistent and coherent with the policy itself. In this way, norms that may appear to be generic and ‘not very normative’ may acquire a clear legal meaning. Thus all policies, like principles, contribute towards the interpretation of the entire text of a constitution (Häberle (1982)). Specific constitutional provisions have expressed this particular legal effect (such as s 27 of Canada’s Constitution Act 1982), as well as various Supreme Court decisions (eg in United States of America, Legal Tender Cases (1871) (US); Ellis v City of Grand Rapids (1966) (US)).

36.  Nonetheless, these policies are usually too open texture to create, alone, individual rights and duties. That is why they are not usually enforceable in a dispute between private parties. Sometimes even if they are clear-cut, some constitutions expressly prevent the use of a policy in a judicial process, mainly because they want to leave the legislator (and other public authorities) free to achieve the goals expressed in a policy when and how it prefers. An example can be found in the Indian Constitution, which expressly states that ‘[t]he provisions contained in this Part [IV] shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the [s]tate to apply these principles in making laws’ (Art. 37, Constitution of India).

37.  Policies can sometimes produce an invalidating effect, as they can constitute the parameter for reviewing a legislative act (judicial review) when it contains provisions that are clearly conflicting with the policy. Evident examples can be found in decisions of the supreme and constitutional courts of different countries: Italy (Constitutional Court, Decision No 1/1956 (14 June 1956) (It)), France (Conseil Constitutionnel, Decision No 71/44 (16 July 1971) (Fr)), and Canada (Supreme Court, Reference re Remuneration of Judges of the Provincial Court (1997) (Can)).

38.  These policy-norms also perform another, not strictly legal, function of political stimulation and moderation, because they help to place the debate between the majority and the minority within a pre-determined constitutional framework, as can be seen, for example, in the Constitutions of Spain (Art. 9 para. 2), Canada (s 36, Constitution Act 1982), and South Africa (Preamble).

(b)  Principles

39.  Constitutions contain many principles.

40.  Unlike policies, which establish an end to be pursued on the assumption that it has not yet been reached, principles (see Dworkin (1977) chapter I; Alexy (1986) chapter III; Alexy (2000)) identify values (see Atienza and Ruiz Manero (1996) chapter I; Atienza and Ruiz Manero (2000)) that the constitution considers already existing within a given legal system and which must be protected by and from all public authorities, including the legislator. Unlike constitutional policies, principles are normally judicially enforceable in relations between private parties and public authorities. Usually but not always, norms expressing principles concern fundamental rights: for example, the constitutional provisions on individual liberty (right to liberty; right to security) or on freedom of expression typically constitute norms that express principles. Principles may sometimes ascribe powers to public authorities. In fact, although their broad, nomological structure makes them inadequate to govern the constitutional organisation, nothing excludes the existence of principles with a prescriptive as well as summarising function with respect to a certain institutional structure (see Zagrebelsky (1970) 905).

41.  Like policies, principles make a significant contribution to the interpretation of the constitutional text and other normative provisions by providing underlying orientations and guidelines that allow the interpreter to reveal the values immanent in the text, laying out a reference framework for the identification of the meaning and the application of constitutional rules (see Alexy (1986)).

42.  According to traditional distinctions, principles differ from rules. While a rule establishes what should or should not be done when specific conditions arise, principles do not specify any particular condition or any specific legal effect, but rather establish a general orientation that can be implemented in many different ways and cases. Principles are normally verbalised in an open-texture way to be broad in scope, resulting in their excess of ethical content (see Betti 211 et seq). As a result they may be applied to a number of cases that cannot be determined a priori; so, they are more ‘general’ or vague, we can say, than rules (see Guastini 275).

43.  Principles typically need to be implemented by the legislature. Nonetheless, they may also be used by a judge as arguments to reach a conclusion which, on one hand, is not directly inferable from a principle (and may also be incompatible with it—in this sense it is also said that principles are defeasible) and, on the other hand, always implies the application of (at least) another principle along with the first which is relevant in the specific case (see Gianformaggio). Therefore, the application of a principle always requires a balancing, and only from that balance will it be possible to find a rule that governs the case in question, while instead a rule directly specifies the legal effect to be applied under certain given conditions. Examples of this balancing between principles are well demonstrated by the concepts of proportionality and reasonableness; by the use of the fair balance principle by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950); by the reasonableness and proportionality tests used by UK courts in the judicial review of administrative actions, especially those concerning liberties of individuals (eg Associated Provincial Picture Houses v Wednesbury Corporation (1948) (UK); Council of Civil Service Unions v Minister for the Civil Service (1983) (UK); Regina v Secretary of State For The Home Department, Ex Parte Daly (2001) (UK)); by the proportionality doctrine used in some respect by Australian Courts (eg South Australia v Tanner (1989) (Austl); Australian Broadcasting Tribunal v Bond (1990) (Austl); Cunliffe and Another v The Commonwealth of Australia (1994) (Austl); Leask v Commonwealth (1996) (Austl)); by the proportionality and reasonableness tests codified in sections 33 and 36 of the South African Constitution of 1996; by the reasonableness test stated in s 1 of the Canadian Constitution Act 1982; or by the balancing of interests so often used by the US Supreme Court (see Cohen-Eliya and Porat (2009)).

44.  Constitutional principles are not the product of a recognition that has already taken place, but rather the ever changing result of the work of each interpreter, and are meant to continuously adapt the constitution so as to ensure a unity of values on an interpretative and ex post basis. This is a consequence of the social and institutional pluralism which appeared during the mid-twentieth century and has been protected by post-war constitutions. Indeed, modern constitutions no longer guarantee a unity of values ex ante (see Zagrebelsky (1992) 155 et seq and 170 et seq). Principles take on the role of values and they are often confused with them.

45.  Modern constitutions contain many different principles which create a framework for individual liberties and outline the essential structure of institutional organisations.

46.  With regard to individual liberties, we may refer to: many amendments to the United States Constitution regarding individual rights (both those contained in the Bill of Rights and those set forth in the eleventh to twenty-seventh amendments); the great majority of the provisions set forth in the Canadian Constitution Act 1982 relating to the rights and liberties of individuals and groups; many provisions contained in the first 19 articles of the German Basic Law concerning individual rights and liberties; many provisions of the Israeli Basic Law on Human Dignity and Liberty; many articles of Part III of the Indian Constitution relating to the rights and liberties of individuals; many provisions set forth in the second chapter, ‘Rights and Liberties’ (Arts 14 et seq), of the Spanish Constitution; and many provisions set forth in Part I, s I of the Italian Constitution regarding the rights and liberties of individuals. Certain principles on rights are also found in the Australian Constitution, such as that according to which the acquisition of property must be ‘on just terms’ (s 51(xxxi)) or that according to which trial by jury is required in relation to some criminal offences (s 80), and that based on which the parliament of a state is prevented from discriminating against non-residents of that state (s 117).

47.  With reference to institutional organisation, we may recall: many provisions contained in the seven articles of the United States Constitution; the principles set forth in the German Basic Law such as that of subsidiarity (Art. 23), and those laid out in Art. 20 relating to the democratic, social, and constitutional character of the legal system; and the numerous organisational principles set forth in the Constitution of South Africa, such as those of co-operative government and intergovernmental relations (s 20), the democratic principle (s 181), and those established with reference to the public administration by s 195. Organisational principles are also found in almost all of the Israeli Basic Laws, such as Basic Law: The Government: 28 January 2003 (Isr) (Art. 4 on collective responsibility; Art. 30 on the principle of transfer of powers), the Knesset (Arts 27 and 28 on the publicity of parliamentary meetings), the judiciary (Art. 2 on the independence of judges; Art. 3 on the publicity of proceedings), the president of the state (Art. 13 on the immunity of the president). Various organisational principles are also set forth in the Indian Constitution, such as that regarding collective responsibility (s 75, para. 3) or that on parliamentary immunity (s 105). Several organisational principles are also found in the Australian Constitution, such as that concerning responsible government (s 7, 24, and 28). The Italian Constitution also contains organisational principles, such as that of subsidiarity (Art. 118; and Constitutional Court, Decision No 303/2003 (1 October 2003) (It)), and on the proper functioning of the public administration (Art. 97, para. 1).

48.  Furthermore, many principles are not specifically stated by constitutional texts but have been inferred by supreme and constitutional courts, for example in Italy (Constitutional Court, Decision No 1146/1988 (29 December 1988) (It)), Australia (R v Kirby, Ex parte Boilermakers’ Society of Australia (1956) (Austl); Fardon v Attorney-General (Qld) (2004) (Austl); Australian Capital Television Pty Ltd v Commonwealth (1992) (Austl)), France (Decision No 71/44 (16 July 1971) (Fr)), and the United Kingdom (Entick v Carrington (1765) (UK)).

49.  To summarise, principles typically perform three functions.

50.  First, they generate a direct effect if the legislature does not implement them. Second, they constitute a negative limit for the legislature, which cannot establish norms conflicting with those principles. And third, they produce an invalidating effect if the law establishes provisions that effectively conflict with that principle.

51.  The first effect results from the not only negative—in terms of the limitation of power—but also positive nature of these norms. For example, constitutional norms on individual liberty do not only entail a limit for the legislature, but they also constitute an affirmation of the mental and physical freedom placed at the basis of human activity. Therefore, this is not only a negative liberty; it is not only freedom ‘from’, but it is also freedom ‘to’—liberty to act, do, self-determine, and use one’s own name and image.

52.  The second effect is the traditional effect of the negative limit to public power and in particular the power of the legislature. The legislature cannot establish norms conflicting with those principles. However, as no constitutional norm is isolated, but lives within a system of many other principles that may possibly conflict with each other, the legislature is called upon to balance these different principles in order to achieve, in the implementing legislation, a reasonable balance between the different principles.

53.  The third effect is a direct consequence of the previous one. If the legislature has not properly balanced the different principles laid out in the constitution, excessively limiting the guarantees of one right for the benefit of another, conflicting right, the legislation may be deemed unlawful and as a result annulled (in systems with a centralised model of constitutional review) or disapplied (in systems with diffuse constitutional review). In both cases, the judicial decisions will be based on reasonableness: the judge will have to consider if the balancing done by the legislator in implementing two or more constitutional principles is reasonable or not.

(c)  Rules

54.  Modern constitutions contain many detailed rules.

55.  Constitutional rules are frequently used to provide strong protection of some individual liberties or public institutions.

56.  The distinction between rules and principles is one of the most debated in legal theory (see Dworkin (1977); MacCormick; and Alexy (1986)). The main distinction between a principle and a rule is usually identified in the norm’s greater or lesser degree of detail (see Crisafulli 41–63, 157–181, 230–264; Guastini 274 f.). Moreover, the logical structure of a principle is characterised by the absence of a specific legal consequence, which is instead present in rules: principles do not connect any definite detailed legal results to any definite detailed states of fact (Pound 483). In terms of application, rules are applied—ie, they require strict application—while principles are implemented, leaving greater discretion to the interpreter. That is why it is commonly said that rules are obeyed while principles are complied with (Ainis (1997)).

57.  Examples of detailed rules are found, for example, in the Italian Constitution (eg Arts 13, paras 2 and 3, and Art. 19), German Basic Law (eg Arts 7, paras 3 and 5, and Art. 9, para. 3), the Indian Constitution (the great majority of the articles), and the Constitution of South Africa (eg Arts 28, 35, and 49).

58.  Constitutional rules are able to produce all of the different effects typical of constitutional norms: the effect of ascribing legal power over some authorities; the invalidating effect; the indirect (horizontal and vertical) effect; the conformative effect; and the direct horizontal effect.

59.  Due to their characteristics, rules are therefore normally judicially enforceable, by any judge, even in relations between private parties.

3.  Different Types of Legal Effects

(a)  The Effect of Ascribing Legal Power

60.  The first effect of constitutional norms to be examined in this article is that of ascribing legal power over a public authority.

61.  In a legal system it is possible to find, alongside the norms that require people to do or abstain from doing certain actions, other norms that instead ascribe to public or private parties the power to introduce new norms, abrogate or amend them, determine their force and impact, etc. These powers are exercised through specific acts, behaviours, and words, expressly established by the ascribing norm. We may agree to call these norms ‘secondary norms’ (see Hart 92 et seq).

62.  These secondary norms are widely present in constitutional texts. Indeed, it could be claimed that they constitute the essential core of modern constitutions. These are norms found primarily, but not only, in the organisational parts of constitutions, ie in those parts in which the institutional organisation of a state is created and the reciprocal relations between authorities are established. These norms implement the principle of separation of powers. The first modern constitutions primarily consist of norms with these effects: consider the United States Constitution and its first seven articles; or the French constitutions of 1791, 1793, and 1795. A possible explanation lies in the idea, derived from the Enlightenment, that the most effective legal mechanism to protect liberty is the separation of powers (see Locke; Montesquieu; Hamilton, Madison and Jay, Federalist Papers Nos 47, 48 and 51; Grottanelli de’ Santi (2014)), and not a bill of rights which could be ‘unnecessary’ and even ‘dangerous’ (Hamilton, Paper No 84).

63.  Through these norms, powers and jurisdictions are assigned to different institutions in a given legal system. Their effect is to allow those institutions to legitimately create or amend norms, through particular acts, words, or behaviours.

64.  Sometimes, norms which confer rights or duties upon individuals may implicitly ascribe powers. Consider the norm that confers upon each person the right to assemble peaceably and without arms (Art. 17, Italian Constitution): this, implicitly, gives the public authority the power to limit violent or armed assemblies.

65.  This ascribing effect is usually linked to other legal effects.

66.  In those countries with a rigid and written constitution and a strong separation of powers, similar in principle to that of the United States, the attribution of a power to an institution prevents that body from further delegation of power (delegatus non potest delegare) (see Willis). The delegatus non potest delegare rule prevents the holder of a power which entails the exercise of discretion from conferring the exercise of that power upon some other person or agency. This preclusion binds all powers, including the legislative power (see US Supreme Court, Cargo of the Brig Aurora v United States (1913) (US); more recently Touby v United States (1991) (US), 164; see also Merrill; Schoenbrod). Any acts whereby this power is transferred would be invalid. This correlation between ascribing effect and invalidating effect is also very widespread in countries in which the separation of powers is less rigid and is inspired by the British model in which the parliament has no legal limits. Examples can be found in India (see Alexandrowicz-Alexander 72–79) and Australia (see Higgis).

67.  In general, the exercise of a power granted by constitutional norms requires compliance with two rules: from the point of view of the subject appointed, the power has to be exercised by the very institution to which it was ascribed; from a procedural point of view, the power has to be exercised according to the rules stated by the ascribing norm. Failure to comply with these two rules typically results in the invalidity of acts or behaviours enacted in exercising the power. There are many decisions that apply these two rules, beginning with Marbury v Madison (US). In Germany, since the first years of operation of the Federal Constitutional Court, it has been deemed that an act that does not respect the procedural requirements established by the Basic Law is unlawful (Steuerverwaltung (1951) (Ger)). In Austria, a (preventive) control on the constitutional jurisdiction of the territorial regions in adopting an act is expressly required (Art. 138, para. 2, B-VG (Austria)). Also in Germany, the Basic Law provides for a constitutional control over the jurisdiction of different institutions and authorities (Art. 93, Basic Law (Ger)). In Italy, there are two specific judicial procedures to guarantee compliance with the separation of powers: the conflict between different branches of the state, and that between the state and regions (Art. 134, Italian Constitution (It)). In Spain, the Constitutional Court is responsible for hearing cases regarding conflicts of jurisdiction between the State and the Autonomous Communities or amongst the latter (Art. 161, Spanish Constitution (Spain)). In Australia, the High Court is responsible for settling conflicts between different levels of government, establishing whether the norms ascribing powers have been violated (Art. 75(iv)(Austl)). This effect can also be seen in the United Kingdom, for example in cases such as Fowler & Co (Leeds) Ltd v Duncan and Crabtree (1941) (UK); Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms Ltd (1972) (UK); R v Secretary of State for Social Services, ex parte Association of Metropolitan Authorities (1986) (UK).

68.  The violation of norms ascribing a power usually results in an invalidating effect, in the sense that the act, the behaviour or the words produced which do not respect those rules are invalid/unlawful (see Ferrajoli 679 et seq).

(b)  Unconstitutionality Effect

69.  A contrast between a constitutional norm and a lower norm results in the unconstitutionality of the latter. We argue that validity and unlawfulness differ, although they both fall under the genus of unconstitutionality. With validity, we agree to refer to the compliance of an act with the procedural norms that govern it. The lower norm must respect the procedure that the higher norm has established to approve it. The concept of invalidity is therefore merely formal and applies when the norm has not respected the procedural rules which the constitution has established for its approval.

70.  Unlawfulness, on the other hand, refers here to a broader concept (but see Ross (1958) and Ross (1969)). A norm that does not comply with the substantive content of constitutional norms can be defined as unlawful. Indeed, even if it has been validly established, it has content conflicting with the content of some constitutional norms. The interpretation activities for verifying this conflict depend on the different characteristics of the constitutional norms (policy, principle, or rule) and will be analysed in the subsequent paragraphs.

71.  A norm that conflicts with the constitution—because invalid or unlawful—can be declared void since the very beginning, annulled, or disapplied (powers and jurisdiction of constitutional courts / supreme courts; remedies at constitutional courts / supreme courts). The voidness, annulment, or disapplication are not attributes of the norm (such as invalidity or unlawfulness), but they are the result of a judicial decision which ascertains the invalidity or unlawfulness of the norm because it conflicts with the constitution and as a result declares its voidness, annulment, or disapplication.

72.  Voidness and annulment as judicial consequences of the unconstitutional effect are typical of those constitutional systems in which judicial review is ascribed to a single constitutional court. Voidness and annulment are usually erga omnes and have retroactive effects (retroactive application of laws).

73.  Disapplication as a judicial consequence of the unconstitutional effect is typical of those constitutional systems in which judicial review can be done by an individual judge. Disapplication generates effects inter partes, which are normally not retroactive.

74.  The unconstitutionality effect is the typical effect arising from the violation of a rigid and written constitution. The first affirmation was made in Marbury v Madison (US). The unconstitutional effect can result in the disapplication of the unconstitutional act in a specific case (inter partes) or in disapplication in every case (erga omnes), which in turn can involve past cases (pro praeterito) or only future ones (pro futuro). There are multiple factors that condition this effect: the type of legal system (civil or common law); the jurisdictional system (with or without a constitutional jurisdiction); the specific constitutional provisions; and case law. Taking into account the plurality of factors capable of graduating that invalidating effect, distinctions between legal systems which refer only to one of these elements do not seem to be particularly useful (see Pizzorusso). In Italy, for example, where control is centralised in a constitutional court and the constitution prescribes an invalidating effect erga omnes pro praeterito and pro futuro, the Constitutional Court has however graduated the temporal effect of its decisions (see Decision No 10/2015 (11 February 2015) (It); see also Bartole et al. (1989)). And the US system, with no constitutional court and where the invalidating effect should regard only the parties involved in the dispute in which the invalidity is ascertained, actually presents an invalidating effect erga omnes when the ruling comes from the Supreme Court due to the principle of precedent. In the French incidental procedure of judicial review, the disapplication of the unconstitutional law has effects ex nunc, but with the possibility for the Constitutional Council to ascribe, within certain limits and under certain conditions, retroactive effectiveness to its decisions, to ensure benefits to the parties in the judicial proceedings from which the constitutional dispute has arisen (see Art. 62, para. 2, second sentence, French Constitution). In France, judges may sometimes modulate the pro futuro effect of their decision, and therefore they may postpone the effects over time. In many cases (see Decision No 2014-453/454 & 2015-462 (18 March 2015) (Fr)), the reasons for the deferment lie in the need to give the legislator the time to newly regulate the subject.

75.  In many recent constitutions, the invalidating effect is expressly established in the text of the constitution itself, such as in India (s 13), Italy (Art. 136), Spain (Art. 164), Canada (s 52), Germany (Arts 94(2) and 100), Tunisia (Art. 102), and South Africa (s 167). In some constitutional systems, the unconstitutional effect was inferred by interpretation by judges, such as in the United States (Marbury v Madison (US)), Israel (Mizrahi Bank Case (Isr)), and Australia as regards the constitutional protection of rights (Australian Capital Television Pty Ltd v Commonwealth (1992) (Austl)).

76.  However, many civil law systems recognise the principle of the ‘presumption of legitimacy of legislative acts’ (legitimacy). According to this principle, a legislative act conflicting with the constitution—because invalid or unlawful—must be applied until a judge declares it annulled or, in the course of proceedings, provides for its disapplication. In these legal systems, the unconstitutional effect usually concerns primary sources of law, ie legislative acts. It does not concern secondary sources of law and executive acts. Indeed, if a sub-legislative norm conflicts with the constitution, two cases could occur. The sub-legislative norm conflicts with the constitution as well as with the legislative act according to which it has been enacted. In this case, the sub-legislative act would be unlawful due to conflict with the legislative act and should be annulled due to violation of the rule of law. Or the sub-legislative act respects the legislative act on which it is based, but conflicts with the constitution. In this second case, it is evident that the legislative act is unconstitutional itself and as a result it could be declared void or set aside with the further consequence of rendering unlawful the sub-legislative act.

77.  Sometimes, in legal systems where private parties are afforded direct access to the constitutional court (access to constitutional courts / supreme courts) for the protection of fundamental rights, it is normally established that the invalidating effect can also be declared in relation to sub-legislative norms or executive and judicial acts.

78.  Great concerns may arise when constitutional powers are exercised in contradiction with the constitutional provisions governing the matter. What if the judges are incapacitated or members of parliament blindly follow the instructions of the government? This problem is particularly evident when a government of the day, sustained by a vast majority in parliament, proposes a constitutional reform in contrast with supreme constitutional principles. Normal constitutional safeguards of rigid constitutions, such as qualified majorities to pass the constitutional reform or judicial review, may not work properly. This situation can lead to internal conflict or even civil war. Some recent events may show a possible answer: Bolivia, Ecuador, and Italy have recently revealed that popular intervention via referenda may be a valid check to political abuse or misuse of powers, and an effective constitutional guarantee (see Bagni).

(c)  The Indirect Horizontal and Vertical Effect (the Constitutionally-Oriented Interpretation)

79.  Constitutions, and in particular constitutional principles and policies, bind the interpreter to interpret sub-constitutional law consistently and coherently with constitutional norms. This function assumes a role that becomes increasingly important as societies become increasingly fragmented and multicultural. As a result of this process, indeed, legislative acts become increasingly diverse and contradictory. To reduce this inconsistency to a unitary framework, interpreters are asked to interpret sub-constitutional law using constitutional norms (see Perini).

80.  Constitutionally-oriented interpretation means, first and foremost, that amongst the various meanings that can be ascribed to a sub-constitutional legal provision, the interpreter must choose those which are consistent with constitutional norms and amongst them the most coherent with the constitution (to distinguish coherence from consistency, see MacCormick Chapters VII and VIII). That is, the interpretation that best implements the constitution. Constitutionally-oriented interpretation also requires a judge not to declare a legal provision unconstitutional if it can be interpreted in (at least) one way which is consistent and coherent with the constitution.

81.  Where this effect has been recognised by judges and widely implemented in case law, the effectiveness of constitutional norms in relationships between private parties has become evident.

82.  Indeed, in the first place, through a constitutionally-oriented interpretation, constitutional principles and policies do not only perform their typical invalidating function, but they become norms that can be directly utilized by judges.

83.  In the second place, this legal effect of constitutional norms ensures that constitutional courts are called upon to decide on fewer cases. Through constitutionally-oriented interpretation, indeed, each judge is bound to apply the constitution. As a result, the rights entrenched in the constitution are largely protected by any judge, and not only by supreme or constitutional courts. Therefore, in contemporary constitutions, the traditional principle of legality works alongside the principle of constitutional legality, which entails the application of constitutional norms through the instrument of constitutionally-oriented interpretation.

84.  In the third place, constitutionally-oriented interpretation tends to bring models of constitutional justice closer together, and in particular the centralised model and the diffuse model. Indeed, the judge applies and interprets the constitution, which therefore no longer falls within the exclusive jurisdiction of a constitutional court, as happens in the diffuse model of judicial review.

85.  The great majority of constitutional rules, policies, and principles are therefore able to have an (indirect) effect within any case of application of the law, by a judge as well as by another authority. A regulatory precept at a non-constitutional level (legislative act, secondary legislation, regulation, contract, etc.) is interpreted not according to its plain meaning, but ‘in light of the Constitution’—that is, opting, from amongst the various interpretative possibilities, for that which is consistent and coherent with the constitution. This allows anyone who is asked to interpret and apply the law to avoid the invalidating effect. This effect can be qualified as ‘indirect’ in that it does not consist of the ‘direct’ application of a constitutional norm to a specific case, but rather the application to a specific case of another (sub-constitutional) norm which is identified ‘in light’ of constitutional norms. This phenomenon is structurally similar to the common law principle of the ‘rule according to a higher law’ or the American ‘Charming Betsy Canon’ (see Murray v The Charming Betsy (1804) (US)).

86.  However, to accomplish this effect, it is sometimes necessary to ‘force’ the meaning of an apparently unconstitutional sub-constitutional text so as to make it compatible with the constitution.

87.  Constitutionally-oriented interpretation tends to distance the judge from the normative texts in order to find a meaning which is consistent and coherent with the constitution. Precisely due to this intrinsic refusal of textualism, the horizontal effect, although not completely absent (see for Australia, Project Blue Sky Inc v Australian Broadcasting Authority (1998) (Austl); for Canada, Retail, Wholesale & Department Store Union, Local 580 v Dolphin Delivery Ltd (1986) (Can) per Justice McIntyre; for South Africa, Du Plessis and Others v De Klerk and Another (1996) (S Afr) and Government of the Republic of South Africa v Grootboom Case (S Afr)), is not particularly evident in common law systems in which, for various reasons, textualism has a certain influence and the Literal and the Golden Rules are predominant (eg for USA Connecticut Nat’l Bank v Germain (1992) (US), 253–254; for UK, Lord Bramwell in Hill v East & West India Dock Co (1884) (UK); for Australia, Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) (Austl)). In some of these countries, it is the legislator itself which at times required judges to interpret its statutes in line with constitutional values and principles (eg for UK, s 3, Human Rights Act 1998; for Australia, s 15A, Interpretation Act 1901).

88.  On the other hand, this effect is particularly evident in Continental Europe (eg Müller; see for Austria, 9 ObA 109/06d (2006) (Austria); for Germany, Lüth Case (Ger)).

89.  As the Italian Constitutional Court has clarified, with regard to the duty for judges to interpret the law consistently and coherently with the constitution, a provision of law cannot be deemed unconstitutional because it is possible to give it an unconstitutional interpretation, but rather because it is impossible to infer a constitutionally-oriented interpretation from it (eg Constitutional Court, Decision No 356/1996 (1996) (It)). Also, in Spain, the Spanish Constitutional Tribunal requires judges to develop interpretations consistent with the constitution (eg Decision No 4/1981 (1981) (Spain); Decision No 111/1993 (1993) (Spain); Decision No 24/2004 (2004) (Spain); Decision No 138/2005 (2005) (Spain)), repeatedly justifying this interpretation technique with the principle of the supremacy of the Constitution pursuant to Art. 9 of the Spanish Constitution (see also Art. 5, paras 1 and 3, Organic Law on the Judicial Power (Spain)). The Spanish Constitutional Court is in any event responsible for correcting the case law of judges with its own decisions (Art. 40, para. 2, Organic Law on the Constitutional Court (Spain)).

(d)  Conformative Effect

90.  Constitutional norms, especially principles and policies, require the legislature to carry out and implement those principles and policies. This can be defined as the ‘conformative effect’.

91.  Unless there are specific constitutional provisions in this sense, this is not a judicially enforceable legal obligation, but it is still a legal duty usually enforced by parliamentary minorities, which can lead to political responsibility.

92.  This conformative effect represents a new function of modern constitutions compared to eighteenth-century and nineteenth-century constitutions. Indeed, these latter did not set out to change society, and therefore they did not outline an active role of the state in this sense. On the contrary, as contemporary constitutions set out to positively change society, the majority of constitutional implementation is transferred to the legislator. Nevertheless, the legislator in turn runs into difficulties when attempting to impose a superior, constitutional unity on pluralist and fragmented societies, such as the ones in which most currently live. Thus, this duty has been carried out mainly by the judge through the constitutionally-oriented interpretation (see the ‘indirect effect’ section of this article).

93.  The conformative effect on legislative decisions becomes evident when the legislator approves a statute that does not respect the directives set forth in constitutional norms (policies and principles), for example by (unconstitutionally) limiting the group of recipients of a benefit (so called ‘relative omissions’). This case will result in the unconstitutionality of the statute that does not comply with constitutional norms.

94.  However, at times, while there may be an obligation to legislate imposed by some constitutional policies or principles, the legislator will not take any action (so called ‘absolute omissions’). In this second case, some constitutions—for example the Constitution of the Portuguese Republic: 2 April 1976 (Port) (Art. 283), the Constitution of the Federative Republic of Brazil: 5 October 1988 (Braz) (Art. 103, para. 2), the Constitution of the Republic of Hungary: 18 April 2011 (Hung) (Arts 25(2)(d) and 32(5)), and the Constitution of the Argentine Nation: 23 August 1994 (Arg) (Art. 43, para. 1)—expressly establish specific judicial procedures to react against the legislative omission; however, constitutions usually remain silent in this regard.

95.  In these last cases, the omission may or may not be legally sanctioned depending on the system of guarantees established by that particular constitutional system and on the type of omission (see General Report of the XIVth Congress of the Conference of European Constitutional Courts on Problems of Legislative Omission; see also the national reports of the XIVth Congress of the Conference of European Constitutional Courts about Problems of Legislative Omission in Constitutional Jurisprudence). For example, in Germany, omissions may be challenged before the Federal Constitutional Tribunal if they violate a specific order to legislate expressly established in the constitution (Fluglärm (1981) (Ger)).

96.  In those systems in which it is expressly established that the policies set forth in the constitution cannot be enforced before a judge (eg India, Art. 37), judges may in any event use them, in combination with other enforceable articles, with the effect of making the former enforceable de facto (for India, see Paschim Banga KhetMazdoor Samiti v State of West Bengal (1996) (India); for South Africa, see Government of the Republic of South Africa and Others v Grootboom and Others (2000) (S Afr)).

97.  Moreover, in those countries that follow the constitutional principle of the supremacy of parliament (parliamentary sovereignty), like the United Kingdom, some constitutional norms have expressly introduced similar conformative effects. A very clear example can be found in the British Human Rights Act 1998, which establishes that judges can ascertain the incompatibility between a law and the European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), with the consequence of activating a procedure that can lead to the introduction of new legislation consistent with the Convention (see Arts 4, 5, and 10).

(e)  The Direct Horizontal Effect.

98.  Modern constitutions contain not only principles and policies, but also detailed rules. These constitutional rules are sufficiently precise to be applied to specific cases. The constitutional norm can and must be used directly by judges, as well as by the public administration.

99.  The so-called Drittwirkung of constitutional norms is a consequence of the new social constitutions. While the nineteenth-century constitutions assumed and preserved a given social model—and therefore constitutional norms were limited to guaranteeing areas of freedom from the state—contemporary constitutions are based on the assumption that they need to directly intervene in social relations in order to correct them. Therefore, constitutional norms act not only at the vertical level in state–citizen relations, but also at the horizontal level in relations amongst private parties. When the norm is sufficiently detailed so as to constitute a rule, this means that it is enforceable even between private parties (private individuals, family, associations, companies, etc.).

100.  The direct horizontal effect produced by constitutional rules has two functions.

101.  First, if the constitutional rule is sufficiently detailed, it attributes specific rights and duties to private parties which may be claimed in court. The violation of the constitutional rule may also generate actions for damages or, when possible, for reinstatement.

102.  In the second place, the direct horizontal effect produces an invalidating function with respect to sub-constitutional law conflicting with that constitutional rule. It should be noted that when the constitutional rule is sufficiently detailed, the judge does not need to balance it with other constitutional norms but he/she is asked only to apply the rule. Indeed, while there could be conflicting principles within the same constitution which need to be balanced, logically there cannot be rules that conflict with each other. Therefore, the violation of a constitutional rule has as its inevitable consequence the unlawfulness of the normative act that conflicts with it.

103.  Horizontal effect therefore refers to the possibility of applying a constitutional norm directly in relations between private parties. It may be applied by any interpreter, although it is usually applied by a judge. From a logical point of view, if the constitution is a legal norm (see Barile), it must be applicable and enforceable in relations between the state and private parties as well as between private parties, just like any other norm. This logical principle is at times expressly set forth, as in the case of the Portuguese Constitution (Art. 18(1)) or the Political Constitution of the Republic of Chile: 8 August 1980 (Chile) (Art. 6: see Díaz García).

104.  An example of direct horizontal effect can be noticed in those detailed constitutional rules which, due to their very formulation, are self-executing (for example, Art. 13, paras 2 and 3, and Art. 111, paras 3, 6, and 7, Italian Constitution). Another example regards those constitutional principles that are susceptible to unambiguous application (Art. 11, paras 2 and 4, Italian Constitution).

105.  However it must be noted that, after an initial outburst after World War II, judges prefer to indirectly apply constitutional norms in horizontal relations between private parties, through constitutionally-oriented interpretation.

106.  Moreover, constitutions may establish specific norms which limit in various ways the enforceability of constitutional rules, as is the case for systems in which the application and enforcement of constitutional norms falls within a specific constitutional jurisdiction, according to procedures that are quite different from state to state (eg Italy, France, Austria, Germany, Spain, Mexico, Brazil, etc.). One particular case is the amparo which, in some legal systems, can also be used with reference to relations between private parties (eg Art. 43, para. 1, Constitution of Argentina; Ley de Amparo 2013 (Mex); Art. 200, para. 2, Political Constitution of the Republic of Peru: 31 October 1993 (Peru); Art. 128, Constitution of the Pluri-National State of Bolivia: 25 January 2009 (Bol)). Another example can be seen in those systems where the constitution provides that its norms are binding but not enforceable, as in the case of India (Art. 37, Indian Constitution). Or in the case of those states which follow the principle of the ‘presumption of legitimacy of legislative acts’, according to which a statute conflicting with the constitution must be applied until a judge declares it void or provides for its disapplication. In this respect, an interesting case is that of France, where for many years the Council of State prevented recognising direct legal effect to constitutional provisions (theory of loi écran). The administrative judge refused to annul an administrative act or a regulation that was unconstitutional, if it was consistent with a legislative act (but see Nicolo (1989) (Fr)). And until the introduction of the question prioritaire de constitutionnalité, the French system did not permit reviewing a legislative act that had already entered into force.

107.  Some of the cases which express some sort of constitutional direct application in relations between private parties are: for Germany, see 1 AZR 150/54 German Federal Labour Court (1954) (Ger) (with a solution that was later overruled); for South Africa, see Gardener v Whitaker (1996) (S Afr), but see also Du Plessis and Others v De Klerk and Another (1996) (S Afr) (in favour of an indirect horizontal effect); for New Zealand, see Solicitor-General v Radio NZ Ltd (1994) (NZ); Duffv Communicado Ltd (1996) (NZ) 99; Hosking v Runting and Others (2003) (Separate Opinion of Justice Tipping at 229); for the United States, see Shelley v Kraemer (1948) (US); for the European Court of Human Rights (ECtHR), see Eweida and Others v The United Kingdom (ECtHR) App 48420/10; 36516/10; 51671/10; 59842/10, paras 84, 90–95 and 107–110; and for Peru, see Arnillas Gamio (1996) (Peru), Cossio Tapia y otros (1999) (Peru).

(f)  The Influence of Constitutions on International Instruments.

108.  The debate on the possible influence of national constitutions on international law—namely, on the incorporation of constitutional principles into international instruments—continues.

109.  One clear example is that of the European Union (EU). The constitutional traditions of distinct states have sometimes influenced and permeated the EU treaties in force. Many concepts and principles come from French and German law. In the European judicial system, general lawyers are modelled on the pattern of the French Commissaire du gouvernement, and the appeal system is also typical of the French administrative system. Ideas of proportionality and reasonableness come from the German constitutional system and, partly, from the Italian one. The references to the preliminary rulings judicial procedure (Art. 263, Treaty on the Functioning of the European Union (signed 13 December 2007, entered into force 1 December 2009) (2008) OJ C115/47 (TFEU)) were introduced having a strong resemblance to Italian judicial constitutional proceedings concerning the constitutionality of laws on an interlocutory (Italian Constitutional Statute No 1/1948 (It)), as proposed by the Italian delegation to the Messina Conference in December 1955 (see Ziller). More recently, typical Nordic law institutions have been transplanted into the European Constituent Treaties such as the ombudsman which was proposed by Denmark in the Maastricht Treaty, and the right of access to administrative documents (right to access to information) which was introduced in the Treaty of Amsterdam and which was influenced by the Constitution of Sweden. Moreover, it has been noted that with regards to the separation of powers the British constitutional system has very deeply influenced the constitutional and administrative structure of the EU (see Grottanelli de’ Santi (2004)). Even more clearly, the Treaty establishing a Constitution for Europe, which was rejected by the Netherlands and France, introduced a set of innovations that came directly from national constitutional traditions.

110.  In all these cases, the influence of distinct national constitutional systems seems to be significant during the writing of new international instruments such as those of the European Union. Thus, it is during the codification of international instruments that national constitutions may greatly influence international law, by means of comparing different national solutions to specific issues.

D.  Brief Conclusions

111.  In conclusion, constitutional norms, unlike legislative norms, act on various, interconnected levels. They are a tool for setting guidelines and limits for the legislature, but they also constitute norms that are directly applicable by judges as well as by constitutional courts. The extent of these different effects of constitutional norms depends on the type of constitution (short or long, detailed or principled: types of constitutions) and certainly also on constitutional conventions (constituent assemblies) and customs (custom) which may attribute legally binding effect to norms that contain policies or general principles.

112.  In this respect, case law is particularly relevant, because, over time, it supplies principles with specific content; and therefore, through case law interpretation, principles can give rise to various rules that may be used in specific cases.

113.  This diversity of effects of constitutional norms should not, however, lead us to believe that some constitutional provisions are not really norms, and that therefore the constitution in question is weakened. Rather, it is the necessary consequence of the new contemporary models of constitutions, which have challenged the logic of the mere negative limit—typical of nineteenth-century constitutions—in order to embrace the logic of social change.

114.  [Acknowledgments: This paper is the result of an open discussion between the two authors. Sections A, C.1. and C.2. were written by Elena Bindi, while sections B, C.3 and D were written by Mario Perini.]

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