Right to Freedom
Fernando Simón Yarza
- Bill of rights — Civil and political rights — Individual rights — Limitations on rights — Fundamental rights
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. Understood as a political principle, the right to freedom constitutes one of the pillars of the constitutional state, not to say its cornerstone. Certainly all the institutions of constitutionalism are conceived as political devices to limit power and preserve the freedom of the individual, that is, the development of all his/her vital capacities against arbitrary interferences coming from the public authorities. In a purely legal sense, however, the explicit recognition of a general right to freedom does not constitute a general trend of comparative constitutionalism. Constitutions usually acknowledge specific rights and freedoms, whereas a general right to freedom is less frequent. Nevertheless, in those countries where this right has been recognized, it can be defined as a right to do or to refrain from doing whatever one considers appropriate, notwithstanding the restrictions that should be necessary and proportionate to protect the public order and the rights of others. It is thus understood as a sort of residuary clause which comprises all those manifestations of freedom which are not included in the rest of the bill of rights.
2. The selection of the different constitutions has been made taking into account the importance of the countries chosen within a comprehensive range of geographical and cultural-legal areas. The countries analysed are among the most important in their respective regions. After a brief explanation of the historical foundations of the right to freedom, the comparative analysis of such right will be undertaken in the following way:
3. The analysis starts with a mention of the right to freedom in France. The Constitutional Council of France (Conseil Constitutionnel) has conferred the highest legal status on the French Declaration of the Rights of Man and of the Citizen (1789), whose Arts 2 and 4 recognize a general right to freedom.
4. Even without an explicit recognition of the right to freedom, several constitutions incorporate broad clauses which have been amply construed by the courts. In some countries, those interpretations have de facto had the effect of recognizing a broad right to freedom or to autonomy. The article examines the paradigmatic case of the US Constitution, where the due process clause contains a comprehensive right to freedom due to the broad interpretation made by the Supreme Court of the United States.
5. Third, a specific comment on the German Basic Law (Grundgesetz) will be made, since this was the first constitutional text to include a right to the ‘free development of the personality’. The reference to the Grundgesetz is of the uppermost relevance, due to the fact that several contemporary constitutions have been influenced by its Art. 2(1). Such a right to the ‘free development of the personality’ can be interpreted in many different ways, and it has contributed to shaping the concept of a general right to freedom in many subsequent constitutions.
6. Last, a comment on the contemporary expansion of the right to freedom in several other countries will complete the analysis. A list of the different constitutions which include either a ‘right to the free development of the personality’ or a more explicit ‘right to freedom’ will be provided. As stated above, the influence of Art. 2(1) of the German Basic Law has been deep, even though there are many countries that incorporate a right to freedom in a more explicit fashion. A specific mention of some of the most influential constitutions within the Asian, Latin American and African regions will conclude the comparative description. In the Asian region, the Constitution of Japan (1946) has included a right to freedom, which has nevertheless been interpreted in a very narrow way. Regarding the Latin American region, Art. 16 of the Colombian Constitution—which was drafted after the German model—has a special significance due to the evolving jurisprudence of the Constitutional Court of Colombia (Corte Constitucional de Colombia). Finally, a reference will be made to the South African Constitution, one of the most consolidated constitutional regimes of the African region. As it happens in the US, there is no specific constitutional provision including a right to freedom in the South African Constitution. However, an evolutionary jurisprudence has also created such a right in this country.
C. Historical Evolution
7. Notwithstanding its deeper roots, the right to freedom must be associated with the political contractualism of the 17th and 18th century. According to John Locke’s explanation, in the state of nature reigns ‘that equal right that every man hath to his natural freedom, without being subjected to the will or authority of any other man’ (Locke para. 54). Therefore, authority is instituted with the purpose of securing the natural rights of the human being, among which freedom is always included. The right to freedom is also for Kant the only innate and original right:
Freedom (independence from another’s necessitating choice) to the extent that it can coexist with everyone else’s freedom according to a universal law is [the] only original right due to every human being by virtue of his humanity (Kant 237; see also Byrd and Hruschka 77–93).
8. Though the philosophical roots of this ‘original right of man’ (Urrecht des Menschen) date back to the 17th and 18th centuries, the meaning of the right to freedom developed considerably in the 19th century. In France, Benjamin Constant delivered his famous speech on ‘The Liberty of the Ancients Compared with that of the Moderns’ (1816), which characterized freedom not as the active participation in the life of the polis (positive freedom of ‘freedom to’, according to the terms coined by Isaiah Berlin), but mainly as the ability to act without being subject to external constraints (negative freedom of ‘freedom from’). In the English-speaking world, John Stuart Mill published his essay On Liberty (1859), a text which is regarded by many as the most vigorous defence of liberalism in history. Finally, in Germany, Wilhelm von Humboldt developed—inspired by Kant—a profound understanding of autonomy as ‘free development of one’s personality’. In The Limits of State Action (1850) he defined the state’s task as providing security so that the powers of individuals may spontaneously develop and flourish.
9. The right to freedom is explicitly recognized by the first constitutional texts. The Declaration of Independence of the United States of America (1776) cites it among the ‘unalienable rights’ with which people have been endowed by their creator; and the French Declaration of the Rights of Man and of the Citizen (1789) considers freedom as one of the ‘natural and imprescriptible rights of Man’ (Art. 2). According to the Declaration, ‘liberty consists in being able to do anything that does not harm others’ (Art. 4). In both cases, we are still looking at original human rights which operate as political principles, but not yet as legal, enforceable rights. Until the 20th century, the early constitutional states did not develop a general constitutional right to freedom which could be invoked against any public power, including the legislator.
D. Comparative Description
10. In most constitutional states, the so-called ‘right to freedom and security’ deals only with freedom against arbitrary detention and imprisonment (prisons and prisoners). Some constitutional texts designate ‘freedom’ or the ‘free development of the personality’ as the foundation of all rights (ie, Art. 10(1) Constitution of the Kingdom of Spain: 6 December 1978; Arts 2 and 3 Constitution of the Italian Republic: 22 December 1947; etc.), but rarely as an autonomous fundamental right.
11. A remarkable exception in Europe is France, a country that recognizes the existence of an explicit constitutional right to freedom. In addition, the French model deserves special attention due to its vast area of influence and to the fact that France is one of the oldest constitutional states in the world. In spite of not having a bill of rights enshrined in its Constitution, its Preamble stresses the commitment of the French people ‘to the Rights of Man and to the principles of national sovereignty as defined by the Declaration of 1789, reaffirmed [confirmée] and complemented by the Preamble to the Constitution of 1946’. Since 1971, the Conseil Constitutionnel has conferred on these references a normative value which allows it to enforce the Declaration of 1789 on the Rights of Man and of the Citizen. As mentioned above, Arts 2 and 4 of the Declaration recognize a general right to freedom. These clauses have been used by the Constitutional Council in order to recognize rights that were mentioned neither in the Constitution nor in any other written document. This was the case, for example, with a Decision of 16 January 1982, in which the Council derived the right of free enterprise (liberté d’entreprendre) from Art. 4 of the Declaration: ‘liberty, which according to the terms of Art. 4 of the Declaration consists in being able to do anything that does not harm others, would not be preserved if arbitrary or abusive restrictions against free enterprise could be imposed’ (Decision 81-132 DC of 16 January 1982, para. 16). More recently, the Council has subsumed the freedom of contract (liberté contractuelle) under the same clause (Decision 2001-451 DC of 27 November 2001, para. 27). Besides, in the judgement that confirmed the constitutionality of the 2001 abortion statute, the Council explicitly invoked ‘the woman’s freedom that results from Art. 2 of the Declaration on the Rights of Man and of the Citizen’ (Decision 2001-466 DC of 27 June 2001, para. 5).
12. Even not including in their constitution an explicit general right to freedom, some countries have de facto recognized such a right through an interpretive expansion of other constitutional clauses. That is the case, for example, of the US Constitution. A general ‘right to freedom’ does not exist as such in the Bill of Rights, but it has been considered to be implicitly incorporated in certain constitutional clauses. In this regard, the substantive due process of law doctrine of the US Supreme Court has been a decisive interpretive tool:
(a) The Fifth Amendment of the US Constitution affirms that ‘no person shall be ... deprived of life, liberty or property, without due process of law.’ After the Civil War, this federal prohibition was extended to the states through the Fourteenth Amendment: ‘… nor shall any State deprive any person of life, liberty, or property, without due process of law …’.
(b) In the second half of the 19th century, the US Supreme Court began to interpret this procedural clause (due process) as a substantive clause, that is, as a guarantee against illegitimate restrictions on life, freedom and property, regardless of the process by which they were approved and enforced. The first case decided upon this doctrine was Dred Scott v Sandford (1857). In this decision, the Supreme Court recognized a constitutional right to the property of slaves through a substantive interpretation of the procedural clause of the Fifth Amendment.
(c) In the aftermath of the Civil War, the Dred Scott jurisprudence was repealed through the so-called Civil War Amendments. However, new fields were discovered for the application of the substantive due process doctrine. In the late 19th and early 20th century, the substantive due process was invoked, above all, in order to enforce unwritten liberties that helped to advance the cause of laissez faire ideology (ie, the freedom of contract or the freedom of enterprise). The most famous judgment of this era is Lochner v New York (1905), which declared void a statute establishing a 60-hour/week working limit on bakery employees. The statute was held unconstitutional because it placed an excessive burden upon the freedom of contract, a right construed by means of a broad interpretation of the Fourteenth Amendment’s due process clause. The laissez faire jurisprudence was repealed in the 1930s, in the context of a famous confrontation between the Court and Franklin Delano Roosevelt. In West Coast Hotel Co v Parrish (1937), the Court took a step back and declared that ‘the Constitution does not speak of freedom of contract’ (300 US 291). In a certain sense, this was an explicit retraction of the ‘substantive due process’ doctrine.
(d) Nevertheless, the concept of ‘substantive due process’ reappeared in the 1960s as one of the legal bases for the new right to privacy. In Griswold v Connecticut (1965), the Court recognized the existence of this right by appealing to the ‘penumbras, formed by emanations’ (381 US 484) of several constitutional guarantees. In a concurring opinion by Justice Goldberg (joined by Chief Justice Warren and Justice Brennan), the right to privacy was founded upon the concept of freedom included in the due process clause, which ‘protects those personal rights that are fundamental, and is not confined to the specific terms of the Bill of Rights’ (381 US 486). This concurring opinion quoted other decisions in which the Court connected the due process clause with those freedoms that are ‘so rooted in the traditions and conscience of our people as to be ranked fundamental’ (i.e., Synder v Massachusetts, 1934) (381 US 487).
13. Although it does not mention an explicit ‘right to freedom’, a third provision that should be mentioned is Art. 2(1) of the Basic Law for the Federal Republic of Germany, which says: ‘every person shall have the right to the free development of his personality insofar as he does not violate the rights of others or offend against the constitutional order or the moral law’. The recognition of such a wide clause is to some extent a consequence of the horrors experienced during Nazism. In fact, Art. 2.1 of the Basic Law is a new departure even in German constitutional history.
14. In its important Elfes decision, the Federal Constitutional Court rejected a narrow interpretation of this clause. On the contrary, the Court expressly stated that ‘the term ‘free development of personality’ cannot simply mean development within that central area of personality that essentially defines a human person as a spiritual-moral being (i. el, the Kernbereichstheorie), for it is inconceivable how development within this core area could offend the moral code, the rights of others, or even the constitutional order of a free democracy. Rather, the limitations imposed on the individual as a member of the political community show that the freedom of action (implicit) in Art. 2(1) is to be broadly construed’ (Elfes (16 January 1957) 36). As a consequence, citizens can invoke this provision in order to seek protection for their freedom in those vital domains which are not already protected by more specific guarantees. The free development clause is thus a sort of residual clause whose application is superfluous when a more specific fundamental right can be invoked. Its content cannot be determined a priori, and—according to the Federal Constitutional Court—potentially comprises any human activity, ‘regardless of the impact that the activity has on the development of one’s personality’ (Reiten im Walde (6 June 1989) 152).
15. Within the freedom clause, the Federal Constitutional Court of Germany (Bundesverfassungsgericht) has included, among other liberties, the fundamental right to emigrate (Elfes), several economic guarantees such as the freedom of contract (eg Sammlungsgesetz (5 August 1966) and the freedom to conduct a business (eg Mitbestimmung (1 March 1979)). Art. 2(1) Basic Law is usually considered also to incorporate a general right to personal identity. Though closely connected with the right to freedom, the right to personal identity protects ‘the strictly personal vital sphere and the preservation of its fundamental conditions’ (eg Eppler (3 June 1980)). In turn, this right includes others such as the right to sexual self-determination (eg Strauß-Karikatur (3 June 1987)); the right to informational self-determination (eg Volkszählung (15 December 1983)); etc.
16. It should be finally noted that the right to the ‘free development of the personality’ recognized by the German Basic Law has been considered to incorporate not only a negative function on the side of the state (a ‘duty to respect’ freedom), but also a positive function (a ‘duty to protect’ freedom). Certainly, most of the German jurisprudence regarding the state duties of protection (grundrechtliche Schutzpflichten) deals with the right to life and to the physical integrity, due to the preeminent importance of such goods (Callies 36). Nevertheless, the right under examination in this article is also considered to incorporate such a duty. And although the positive function of the fundamental rights has attracted a unique attention in the German doctrine (for a comprehensive bibliographic account, see Simon Yarza 399-423), it is already recognized in many other countries such as France, Portugal or Spain (Callies 32–42; Szczekalla 917 et seq.).
17. It should be finally noted that the right to freedom has experienced an important expansion in the last decades. Apart from the countries already mentioned, many others have incorporated a right to freedom, using different formulae.
18. The immense majority of them have followed the German pattern. Thus, what they recognize is a fundamental right to the ‘free development of personality’, in many cases with the express limitation of respect for the law and morals. In this sense, it is worth mentioning Art. 31 Constitution of the People’s Democratic Republic of Algeria: 28 November 1996; Art. 9 C. Constitution of the Republic of Benin: 2 December 1990; Art. 2 Constitution of the Central African Republic: 5 December 2004; Art. 2 Constitution of the Republic of Chad: 14 April 1996; Art. 16 Constitution of the Republic of Colombia: 5 July 1991; Art. 16, para. 2, Constitution of the Democratic Republic of the Congo: 13 May 2005; Art. 2 Constitution of the Republic of Cote d’Ivoire: 23 July 2000; §19 Constitution of the Republic of Estonia: 28 June 1992; Art. 16 Constitution of Georgia: 24 August 1995; Art. 5(1) Constitution of the Hellenic Republic: 7 June 1975; Art. 6 Constitution of Guinea: 2010; Art. 70, para. 1, Constitution of the Republic of Honduras: 11 January 1982; Art. 31(2) Constitution of the Republic of Poland: 2 April 1997; Art. 7, para. 2, Constitution of the Republic of Senegal; Art. 23, para. 2, Constitution of the Republic of Serbia: 30 September 2006; Art. 23 Constitution of Ukraine: 28 June 1996. In Angola, a general right to development of one’s personality was discussed in 2004, but instead of this right, the drafters of the Constitution of 2010 decided to incorporate several specific personality rights (see Thomashausen 2011, 13).
19. There is another group of countries that recognize a right to freedom in a more explicit fashion. The list should include, at least, the following ones: Art. 24 Constitution of the Islamic Republic of Afghanistan: 3 January 2004; Art. 19 Constitution of the Argentine Nation: 23 August 1994; Art. 27(1) Constitution of the Republic of Cape Verde: 25 September 1992; Art. 5 Constitution of the Republic of Guatemala: 31 May 1985; Art. 70, para. 1, Constitution of the Republic of Honduras: 11 January 1982; Art. 32(1) Constitution of the State of Papua New Guinea: 16 September 1975); Art. 20, para. 1, Constitution of Turkmenistan: 18 May 1992. Following the French Declaration on the Rights of Man and of the Citizen, some of these countries define freedom as ‘the right to do whatever the law does not prohibit’ (Art. 5 C. Guatemala), or they use a similar formulation. Besides, almost all expressly acknowledge inherent restrictions on the right to freedom (ie, the freedom of others, the law, morals or public health).
20. In order to complete the analysis, a more specific examination of some paradigmatic constitutions of the Asian, Latin American and African area should be made:
21. In the Asian area, the Constitution of Japan contains a remarkable example of a right to freedom. Its Art. 13 affirms that
all people shall be respected as individuals. Their right to life, liberty and the pursuit of happiness shall, to the extent that it does not interfere with the public welfare, be the supreme consideration in legislation and in other governmental affairs (Art. 13 Constitution of Japan: 3 November 1946).
22. This article’s wording has been clearly influenced by the US Declaration of Independence, though in Japan the clause creates fully enforceable rights. As is the case with Arts 2 and 4 of the French Declaration, this clause is deemed as a ‘catch-all provision’ that potentially includes several unwritten rights, eg, the right to privacy (Hasegawa v Japan (24 December 1969)) In the Court’s words, according to the ‘right to life, liberty and pursuit of happiness’ enshrined in Art. 13 of the Constitution, ‘the people’s freedom with respect to their private lives should be protected against the exercise of state powers’ (see Itoh and Beer 178–179). In later cases, Art. 13 has been interpreted by some authors as a ‘comprehensive right subsuming rights and freedoms indispensable to personal life’ (Winkler 160). Nevertheless, in spite of the wide meaning of this right to freedom, it should be noted that the Supreme Court of Japan (Saikō-Saibansho) has displayed a remarkable self-restraint in the exercise of its power of judicial review and, in all its history, it has only declared a few statutes unconstitutional (see further, Law 1425–1466). In contrast with other countries that also incorporate such broad clauses, the meaning of the constitutional right to freedom in Japan is largely left to further development by the legislator.
23. The extraordinary self-restraint displayed by the Japanese Supreme Court contrasts with the much more active role played by the courts of other countries in the definition of a right to freedom. In Latin America, it is worth mentioning Art. 16 of the Colombian Constitution of 5 July 1991. Following the German pattern, this provision states that ‘all persons are entitled to the free development of their personality without limitations other than those imposed by the rights of others and the legal order.’ Since its early decisions, the Constitutional Court of Colombia has conferred a wide meaning on this clause. It has defined its content as ‘the freedom to act, to do or not to do whatever is considered appropriate’ (T-222/92, II.F). According to the Court, ‘the right to the free development of the personality is not a simple right, it is a principle that irradiates all the rights included in the Constitution by reinforcing their proper meaning’ (T-542/92, II.2.1). Through this clause, the Court explains, ‘the Constituent wanted to elevate to the condition of a fundamental right the freedom with respect to the vital options and individual beliefs’ (Decision T-097/94, 30). In its controversial Decision C-221/94, regarding the decriminalization of drug use, the Colombian Constitutional Court stated that the right to freedom ‘allows (the person) to decide upon the most radically human issues, the good and the bad’ (6.2.4). The right to freedom would thus prevent the state from any interference in somebody’s liberty ‘as long as it does not harm a third party’, with the consequence that even the use of drugs could not be considered as a crime. In the seat belt case (Decision C-309/97), the Constitutional Court admitted the constitutionality of mandatory safety measures that, even restraining individual freedom, are aimed at the protection of the individual’s health or safety. The Court distinguished then ‘perfectionist policies’—which ‘are excluded in Colombia’ (VII.8), for their being against the Court’s conception of pluralism and autonomy—from policies which are aimed at the interest of their addressees. These measures would be legitimate, provided that they respect the principle of proportionality (VII.11). On the basis of all these considerations regarding the meaning of freedom, in a long series of decisions the Court has included several ‘new rights’, for example, the right to decide one’s sexual identity (see, among many others, T-063/15, n. 4.1), the right to euthanasia (Decision C-239/1997 and, more recently, Decision T-970/14) or the right to homosexual marriage (SU-214/16; same-sex marriage / registered partnership).
24. Finally, another example of a non-written right to freedom is provided by South Africa, one of the most consolidated constitutional regimes of the African region. The ‘catch-all’ provision that has been used to include this right is the right to dignity, recognized by Section 10 of its Constitution (dignity and autonomy of individuals). According to this provision, ‘everyone has inherent dignity and the right to have their dignity respected and protected’. According to the Constitutional Court of South Africa, this right is the foundation of several non-written rights, and it has been invoked to declare unconstitutional several different conducts, i.e., the death penalty (see S v Makwanyane and Another Case (S Afr) (6 June 1995)), or the criminalization of sodomy (National Coalition for Gay & Lesbian Equality v Minister (9 October 1998); LGBTI rights).
25. An important decision concerning the ‘right to dignity’ is Dawood and Another v Minister of Home Affairs and Others (7 June 2000). This case concerned the right of non-citizen spouses, permanent same-sex life partners, dependent children and destitute, aged or infirm family members of South African citizens and permanent residents to remain in the country while an application for permanent residence status was still pending. According to the Constitutional Court, Section 10 ‘makes it clear that dignity is not only a value fundamental to our Constitution, it is a justiciable and enforceable right that must be respected and protected’ (para. 35; justiciability). Given the fact that ‘it cannot be said that there is a more specific right that protects individuals who wish to enter into and sustain permanent intimate relationships than the right to dignity in section 10’ (para. 36), the Court subsumed this particular freedom in the right to dignity.
26. There are other more recent examples in which the South African Constitutional Court has relied on the right to dignity in order to protect freedom in the absence of a more specific right. In Teddy Bear Clinic for Abused Children and Another v Minister of Justice and Constitutional Development and Another (3 October 2013), the Constitutional Court declared the unconstitutionality of the criminalization of consensual sexual intercourse among non-adults between 12 to 16 years old. The prosecution of adolescents was considered by the Court to violate their right to dignity, since: ‘It cannot be doubted that the criminalization of consensual sexual conduct is a form of stigmatization which is degrading and invasive’ (para. 55).
27. As has been said, the right to freedom is one of the keystones of constitutionalism, the only ‘original right’ (Urrecht) of the person—according to Kant—and one of the three natural rights of the human being—according to Locke. The explicit recognition of a general, enforceable right to freedom is not a predominant constitutional practice, but it has been included in some States as a ‘residuary clause’. In other countries like the US or South Africa, the Supreme Court has built up very similar rights through a broad interpretation of other clauses.
28. Broadly speaking, the general right to freedom can be defined as a right which potentially protects every legitimate exercise of freedom that is not covered by other particular freedoms. Building on this common understanding, variations among countries can be detected depending on what is to be considered a legitimate interference on individual freedom. By way of example, the jurisprudence developed by the Constitutional Court of Colombia shows a more ‘antiperfectionist’ conception of freedom than the jurisprudence of the US Supreme Court, and a much more one than German Federal Constitutional Court. Finally, in other well-established constitutional regimes, like Japan, the right to freedom is almost completely left to legislative development.
29. However, the enforcement of the broad right under examination has always been controversial. The two main lines of criticism formulated against an enforceable ‘right to freedom’ are the following:
(a) On the one hand, such broad clauses allow the courts to review ordinary legislation by invoking formal abstractions, thus creating legal uncertainty, threatening the ideal of the rule of law and invading the more democratic, moral judgment of the legislator.
(b) In addition, in the US criticism has been levelled at the lack of textual support for the ‘substantive due process’ doctrine that lies beneath a broad right to unwritten liberties. Concerning this doctrine, John Hart Ely affirmed in an influential work that it is ‘a contradiction in terms’ (Ely 18), because it transforms an unequivocal procedural clause (due process) into a substantive clause (substantive due process).
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