Part I History, Methodology, And Typology, Ch.7 The Place Of Constitutional Law in the Legal System
Edited By: Michel Rosenfeld, András Sajó
If one takes a broad, panoramic perspective on comparative constitutional law, the now familiar narrative of the rise of world constitutionalism1 suggests a fairly straightforward and uniform answer to the most general question of the place of constitutional law in a legal system, at least as a formal matter. So, too, the logically prior question of what constitutional law is. The ‘post-war paradigm’2 posits in its essential features, first, that constitutional law is the law codified in a country’s written constitution, mostly establishing the ground rules of government and protecting certain basic or fundamental rights, and second, that this law sits at the apex of its legal system. It is the supreme law of the land, entrenched to reflect and preserve its primacy, and authoritatively interpreted and applied by a high court with the power to set aside conflicting non-constitutional law and legal acts. To be sure, there continue to be outliers from this dominant model as a whole and from one or other of its typical characteristics, none of which is strictly-speaking necessary, but in itself this is insufficient to undermine or complicate the straightforward answers.
Zooming in, however, on the theory and practice of constitutionalism in certain specific contexts and countries reveals that both questions have recently become interestingly more complex and the answers provided more nuanced and diverse. There has been fresh input that (p. 170) enriches and transcends this standard, relatively formal and positivistic, conception of constitutional law and its place in a legal system. So, for example, what constitutional law is and the line between it and other law, what forms it can take and the judicial techniques it may employ, have been helpfully complicated by the development of theories of both the common law constitution and the statutory constitution in various English-speaking countries in recent years, including the ‘big-c’ constitution United States. Similarly, three quite different views of the general place of constitutional law in a legal system have been defended or described in different contexts, which when put together and contrasted with each other form a helpful spectrum running from political constitutionalism, to legal constitutionalism, and finally to what may be called ‘total constitutionalism’.
Less globally, and perhaps also more familiarly, there are robust ongoing practical and scholarly debates about the place of constitutional law in certain specific areas of a country’s legal system. Thus, the old question of the relative importance and centrality of constitutional law to issues of rights protection, on the one hand, and governmental structure, on the other, has been raised in a surprising variety of contexts and with interestingly different conclusions in recent years. The issue of the scope of constitutional law within the sphere of private conduct/private law has been a prominent one in recent bouts of constitution-making and judicial implementation, triggering much scholarly interest. Similarly, the debate about the role of constitutional law versus legislative politics in securing social and economic welfare has been enlivened and extended by recent experience, particularly in South Africa and Eastern Europe, and the scholarly attempt to digest it.
Overall, this increasingly rich literature suggests the importance of a genuinely comparative perspective that takes contextualized constitutional discourses seriously and results in distinct and broader conceptions of constitutional phenomena than provided by either purely domestic constitutional law or more abstract, philosophical reflection. Here, as elsewhere, focus on both sameness and difference, on paradigm and particularity, seems to offer the most useful and illuminating general methodology for the discipline.
Taking a position on the general place of constitutional law in the legal system also involves, at least impliedly, taking a position on the place of ordinary or non-constitutional law. For it is the place of constitutional law in contrast with this latter that is mostly being considered.3 Accordingly, it is necessary as a threshold matter to have a fairly clear sense of what constitutional law is and where the line between it and all other law falls. At the comparative level, several separate but overlapping discourses in recent years have rendered this question interestingly more complex and the resulting answer significantly less formal and uniform.
The traditional view is that constitutional law has a primary and a secondary meaning corresponding to the well-known two meanings of the related term ‘constitution’. Thus, the first and primary meaning is ‘big-c’ constitutional law: the law contained in a written, codified constitution or plausibly inferred from it. Typically, although not necessarily, this law has the three characteristics referred to above of being supreme, entrenched, and enforced through (p. 171) the power of judicial review. Although contemporary constitutional law in this primary sense also has a typical content—establishing the relatively concrete ground rules of government and proclaiming a rather more abstract set of basic or fundamental rights—it is not the content or subject matter that determines its status as constitutional law. Indeed, there is no restriction on content. Any law that satisfies the formal criteria for becoming part of a big-c constitution qualifies.4 Hence the possibility of a constitutional amendment prohibiting the manufacture, sale, or transportation of alcohol.
The second—and very much secondary—traditional meaning of constitutional law corresponds to the Aristotelian concept of a ‘small-c constitution’. That is, constitutional law is the subpart of the aggregate body of rules, practices, and understandings determining the actual allocation of power in a polity (and the limits on it) that have formal legal status. Historically, this meaning of the term has mostly been limited to legal systems lacking a big-c constitution, such as the United Kingdom. Here, the more inclusive term ‘the British Constitution’, or just ‘the Constitution’, traditionally refers to the entire small-c constitution and ‘constitutional law’ the subset with common law or statutory status—the subset that is legally enforceable. But, in principle, this secondary meaning could also be employed in legal systems with big-c constitutions, and just as differences and even contradictions may arise between a system’s big and small-c constitutions,5 so too between a system’s big and small-c constitutional law. Indeed, as we will see, this is in effect what has been posited by theorists of common law and statutory constitutionalism in the United States. Unlike the first meaning, small-c constitutional law is largely determined by subject matter and function. Laws concerning prohibition, for example, could not easily be part of constitutional law in this sense.
This conventional and fairly straightforward understanding of the line distinguishing constitutional and ordinary law has become a little more complicated recently as the result of at least four separate and mostly unrelated discourses taking place in a variety of different, particularized constitutional contexts. The first of these is the work of certain constitutional theorists in the United States just referred to who have challenged the traditional, exclusively big-c conception of constitutional law with its sharp line between the law contained (one way or another) in the venerable US Constitution and all other law. This challenge has taken the form of developing theories of both an unwritten, common law constitution,6 focusing on the importance of precedent, conventions, extra-textual principles, and incremental styles of constitutional reasoning, and a supplementary statutory constitution of certain super-statutes, such as the Civil Rights Act of 1964, which are effectively entrenched and treated as higher law.7
The second is recent practice and theory in the United Kingdom. The practice is the enactment and subsequent evolution of the Human Rights Act of 1998, a statutory bill of rights which is sometimes recognized and referred to as a ‘constitutional statute’ in ways that (p. 172) transcend the traditional small-c sense of the term and largely corresponds to the ‘super-statute’ meaning in the United States.8 Some commentators have argued that even though it does not empower courts to invalidate inconsistent statutes, the Human Rights Act has ushered in a system of constitutional review of ordinary legislation and executive acts that in substance, if not form, is little different from that in the United States or Germany.9 On the theory side and pre-dating the Human Rights Act, a robust theory of common law constitutionalism has been developed that also permits judges to review legislation and executive acts, here against rule of law principles such as due process and equality that are claimed to be an inherent part of the common law.10 Here, constitutional limits applied by courts may help to determine the meaning and even the validity of a statute. Both developments provide examples of constitutionalization without a big-c constitution.
A somewhat different example of this phenomenon is provided by the recent rise of international constitutionalism as a leading approach to international law, primarily within Europe and especially Germany.11 Although there are almost as many theories of international constitutionalism as theorists, the common core of the enterprise has been the attempt to co-opt the concepts and success of domestic constitutionalism and constitutional law at the international level. To the extent there is meaningful international constitutional law in various contexts, particularly that of the international human rights regime, this is also claimed to be mostly in the big-c sense—sharing its main characteristics as higher law—but without the big-c constitution. Within this account, international human rights treaties are in many ways perceived as international constitutional or super-statutes.
Finally, a theory of the ‘total constitution’ presented as an interpretation of modern German constitutional practice,12 but which arguably could be applied to several other contemporary constitutional systems—including South Africa and certain Latin American countries—effectively erases the line between constitutional and non-constitutional law altogether. This is because a total constitution, one that answers or strongly influences virtually all legal and political conflicts in a society, tends to constitutionalize all law by requiring it to be not merely consistent with, but superseded by, the big-c constitution.
As a result of overlapping developments such as these, the dominant and relatively specific comparative paradigm is beginning to erode and there may be no single account of what constitutional law is to replace it, except perhaps at a significantly higher level of generality. So, in one direction, constitutional law is increasingly perceived as not limited either to written constitutions themselves or the legal systems that have one, but can also be found generally in statutory and common law forms. Accordingly, as the notions of a common law and statutory constitution have become more mainstream, it may soon be necessary to talk of a ‘constitutional constitution’ to distinguish this form from the other two. Most importantly, as a result the general understanding of what constitutional law is has begun to shift to stress the substantive (p. 173) over the formal aspects. That is, regardless of precise source or status, constitutional law is functionally higher law that may be entrenched in several different legal and non-legal ways (and not only through a formal, super-majoritarian amendment process) and enforced by various techniques of constitutional review (and not only a formal judicial invalidation power). Subject matter is also more important than under the purely formal status approach of the traditional primary meaning, but also not sufficient as under the second, small-c meaning; rather there are higher law and perhaps also constitutional review implications of ascription. In other words, there is some merging of the two existing senses of constitutional law into a distinct and more general third sense that may be particularly important in comparative constitutional law. Within this third, more comprehensive sense, big-c constitutional law will be one important type of constitutional law but not the exclusive one, either across legal systems or within a particular one.
Constitutional law is also spreading in another direction, however, so that it does not necessarily presume a sphere of ordinary law at all but may be the only true norm-generating source in a legal system. This suggests perhaps a different, traditional separation of powers-defying division between higher and lower law, in which constitutional law alone performs the legislative function and all other law, including that enacted by the legislature, is essentially administrative in nature—executing, specifying, and applying the constitutional norms.
Taking this expanded, less formal conception of constitutional law into account, and looking comparatively at the theory and practice of constitutionalism in various particular contexts, there are currently three competing general accounts of the place of constitutional law in a legal system. These three accounts form a spectrum running from a non-existent to a comprehensive role for constitutional law.
The first position has come to be known as ‘political constitutionalism’ in the United Kingdom, where it has become a well-theorized and articulated response to the perceived trend towards its opposite, ‘legal constitutionalism’, in recent years.13 The position itself, however, is a familiar one elsewhere, although increasingly more in theory than practice. In response to the general question of what type or number of moral/political/legal issues and conflicts in society should be resolved by constitutional law in either the big-c or newer, more comprehensive sense, the answer of political constitutionalism is essentially zero. All such conflicts should be resolved politically, through ordinary, non-constitutional laws made and executed by political actors who remain fully accountable for them to the electorate. More specifically, the constraints on legislatures in particular should be political and not judicially administered ones, with office holders held to account through political processes and in political institutions rather than legal ones.14 Similarly, according to political constitutionalists, removing rights from democratic politics, as legal constitutionalism (p. 174) typically does, is both an ineffective and illegitimate method of upholding and protecting them.15 Although aiming to secure constitutionalism’s traditional negative function of limiting political power, albeit by exclusively political rather than legal means, political constitutionalism also aspires to provide space for the more positive function of promoting constitutionalist values, such as individual autonomy and equal concern and respect.16 As a normative theory with strong roots in republican conceptions of democracy, political constitutionalism is to be distinguished from empirical theories concerning the phenomena of formal constitutions and constitutional law that exist on paper but do not in fact determine any of the issues they purport to.
The binary opposite position of legal constitutionalism can take a number of particular forms, as the previous section clarifies. Indeed, to a significant extent, the development and refinement of political constitutionalism in the United Kingdom has been in response to the common law and statutory forms of legal constitutionalism—of constitutional law—that have evolved in both theory and practice in recent years. Nonetheless, of course, legal constitutionalism remains most familiar comparatively in its big-c, written constitution sense. Whatever form or forms it takes, however, legal constitutionalism’s characteristic answer to the underlying general question is that constitutional law should (that is, its function is to) resolve some moral/political/legal issues and conflicts in society—typically those that might otherwise undermine or destabilize it—while leaving others to be resolved politically. Of course, justifying this answer and determining the precise boundary between the two has quite properly been a major focus of scholarly effort,17 and important parts of the boundary question form the topic of the following section. But the basic idea that constitutional law both takes some issues off the political agenda and leaves others on it, has been central to its appeal in an era that has seen the rise of world constitutionalism alongside, and as part and parcel of, the rise of world democracy.
Although in its multiple guises and manifestations, the debate between political and legal constitutionalists often seems to suggest that these two options exhaust the terrain, the two answers they provide to the general question—constitutional law should resolve no moral/political/legal conflicts and some conflicts—appears to leave open the possibility of a third. That possibility has now been realized with the development of an interpretation of German constitutional practice that has been termed ‘the total constitution’.18 For, mirroring the total state, what is ‘total’ about the constitution in this position is that it essentially resolves—or strongly influences—virtually all moral, legal, and political conflicts in a society. Through an expansive interpretation of constitutional rights so that almost any governmental action triggers one or more, a broad conceptualization of the impact of constitutional law on private law, and a robust set of protective duties on the state, there are few issues on which the Basic Law is silent and so relatively little that is left to the free, unmediated play of political forces. Something like this conception of the enlarged place of constitutional law in a legal system and society is arguably also held at least in part elsewhere. Post-apartheid South Africa has a similar broad conception of constitutional rights and long list of protective duties, supplemented (p. 175) in its case by certain enforceable social and economic rights. Certain Latin American countries, such as Colombia and Argentina, whose constitutional courts have creatively filled legislative vacuums by directly enforcing constitutional rights against private actors,19 may also be said to fit this model of total constitutionalism. Under it, constitutional law is not only supreme but comprehensive; it does not simply resolve a few potentially destabilizing issues or render certain more extreme or unreasonable policy options beyond the pale of permissible political choices, but specifies almost all outcomes. In this way, ordinary law and the political process that enacts and administers it loses its autonomous normative power and becomes in effect applied constitutional law.
These three positions—political, legal, and total constitutionalism—still do not quite fully occupy all possible territory, all possible positions on the general place of constitutional law versus ordinary law and politics in a legal system. Although the debate between political and legal constitutionalists tends to be conducted as if the choice is an either-or one, in reality most legal systems have elements of both even where one or the other is predominant.20 Thus, a paradigmatically legal constitutionalist regime such as the United States still has swathes of putatively constitutional law that are typically politically rather than judicially enforced, such as separation of powers. Australia is perhaps the best example of a formally ‘mixed regime’, with a legal constitutionalist treatment of structural issues—federalism and, to a lesser extent, separation of powers—and a mostly political constitutionalist treatment of rights. But in addition to the prevalence of such formally or informally mixed regimes that apply one or other model to different substantive areas, there is also a separate and distinct model that attempts to blend political and legal constitutionalism across the board. This is variously known as ‘the new Commonwealth model of constitutionalism’ (based on where the model has taken hold), ‘weak-form judicial review’, ‘the Parliamentary rights model’, and ‘the dialogue model’ of judicial review.21 At least according to some of its commentators, the distinctive feature of this new model is the attempt to incorporate both legal and political modes of accountability by combining some form of constitutional review by courts with a legislative power of the final word.
The previous section discussed what might be thought of as macro-constitutionalism, differing views on the place of constitutional law in general. Is there a place for it at all and, if so, what should its general scope be compared to ordinary law and political accountability? In this section, I turn to micro-constitutionalism. What is and should be the role of constitutional law versus ordinary law and the political process that makes and executes it in certain specific and contested areas? In particular, those to be discussed are (1) rights protection and (p. 176) the structure of government; (2) private law and the conduct of private individuals; and (3) entitlements to state protection and socio-economic benefits.
Of course, the answers to these more micro or specific issues are relevant to, and in some cases determined by, the broader brushes of the macro positions discussed in the previous section. Thus, political constitutionalism’s macro-no, as it were, implies negative answers to all three more micro-issues, and total constitutionalism’s macro-yes the opposite. Indeed, it is the expansive answers given in precisely these three areas that underlie this interpretation of German constitutional practice. So in this sense, the debate here is conducted exclusively within the terrain of legal constitutionalism as a major part of the boundary issues determining the precise scope of constitutional law versus politics, the line between the ‘some’ issues to be decided by one and the other. Nonetheless, most of the scholarship on these three issues has been conducted at the micro-level, in that it has treated the three topics in a relatively self-contained and autonomous manner rather than as mostly implications of a general macro-constitutionalist position.
The first more specific issue is whether, as a descriptive or normative matter, constitutional law has a greater or more essential role to play in matters of governmental structure or in matters of rights. Although the issue has not always been discussed explicitly in terms of these two alternatives, it has been a recurring one over the years in different contexts and there have been major paradigm shifts on it. Indeed, it has been argued that a new one is now taking place.
Prior to the end of the Second World War, constitutional law tended to focus on the ground rules of government, and democratic constitutions, in particular, on the essential framework of electoral politics. Rights were typically either not included at all or deemed non-justiciable. This focus on structure at least in part reflected the normative concerns about rights famously and influentially expressed by Hans Kelsen and institutionalized in his prototype European constitutional court in inter-war Austria.22 Indeed, these concerns continued to dominate constitutional law in that country, which had no bill of rights until recent domestic incorporation of the European Convention on Human Rights, and still do in Australia.
By contrast, in the multiple waves of constitutionalization since 1945, the incorporation of a bill of rights into constitutional law—with its usual characteristics of supremacy, entrenchment, and judicial enforceability—has been a standard feature, one we now associate with a ‘normal’ state.23 This is what has been referred to as the ‘rights revolution’.24 Indeed, it is not only that rights are now typically or presumptively present, as part of constitutional law, but their protection has come to be viewed as the central and primary function of constitutional law. From the post-Nazi Federal Republic of Germany, to post-communist states in Central and Eastern Europe, post-junta democracies in Latin America, and to post-apartheid South Africa, the entire post-war paradigm and rise of world constitutionalism is inexplicable apart from the central position that rights protection has assumed. This centrality is commonly given expression by the location of a bill of rights at the very beginning of modern constitutional texts, and is also manifested by the fact that it is specifically bills of rights that have been (p. 177) deemed to form statutory constitutions in countries like New Zealand and the United Kingdom. As one (skeptical) commentator puts it:
Central to legal constitutionalism is the idea of constitutional rights. Constitutions do many other things beyond enshrining rights. But probably nothing has been so influential in driving constitutionalism along the path of legal rather than political thought than the emphasis on rights …25
This development in domestic constitutionalism parallels, and of course reflects the same zeitgeist as, the similar one over the same period at the international level with the rapid development of international human rights law.
The centrality of rights in contemporary constitutional law is also evidenced by the normative debate over constitutional or judicial review in that almost all arguments, both for and against, have focused exclusively on rights protection rather than issues of structure.26 This is so even though it is widely acknowledged that as a historical matter, the need for a relatively neutral umpire to referee disputes among political institutions over vertical and horizontal allocations of government power—and particularly federalism—was an important factor in the rise of judicial review in the United States and elsewhere, and has continued to be in institutions such as the European Union.27 In the United States, and notwithstanding this history, there is a well-known argument justifying this centrality in that issues of constitutional structure can safely be left to political constitutionalism while rights protection cannot.28
Within comparative constitutional law as a whole, however, it is possible that things may be turning full circle. For it has been argued that following the rise, we are now witnessing the decline of rights-based constitutionalism, at least in many contemporary post-conflict states, including Iraq, Bosnia, Kosovo, Sri Lanka, and Northern Ireland. In this context, structural issues concerning the allocation of power among rival ethnic or religious groups, and not bills of rights, have been at the heart of constitutional law and politics.29
The second more specific issue is the place of constitutional law within the sphere of non-governmental or non-public conduct and the (private) law that regulates it. Within comparative constitutional law this issue is generally known under the rubric of ‘vertical’ and ‘horizontal effect’. These alternatives standardly refer to whether constitutional law regulates only the conduct of governmental actors in their dealings with private individuals (vertical) or also relations among private individuals (horizontal).
The traditional animating idea informing the vertical approach is the perceived desirability of a public-private division in the scope of constitutional law, leaving civil society and the private sphere free from the uniform and compulsory regime of constitutional regulation. The well-known justifications for this division lie in the values of autonomy, privacy, market (p. 178) efficiency, and federalism (where relevant). A constitution’s most critical and distinctive function, according to this general view, is to provide law for the lawmaker not for the citizen, thereby filling what would otherwise be a serious gap in the rule of law.30
The general arguments for the opposite, horizontal approach express an equally well-known critique of the ‘liberal’ vertical position. First, to the extent the function of a constitution is viewed as expressing a society’s most fundamental and important values, they should be understood to apply to all its members. Secondly, both the conceptual coherence of the public-private distinction and the practicality of applying it are questionable, especially given the widespread recent privatization of much governmental activity. Thirdly, constitutional rights and values are threatened at least as much by extremely powerful private actors and institutions as by governmental ones, yet the vertical approach automatically and unjustifiably privileges the autonomy and privacy of such citizen-threateners over that of their victims. Moreover, since the vertical position does not prevent private actors from being regulated by non-constitutional law, it is unclear why autonomy is especially or distinctively threatened by constitutional regulation.31
The issue of horizontal effect has sparked great interest among comparative constitutional law scholars in recent years. The reasons are, I think, twofold. First, it has become of enormous practical importance in the wake of the spectacular burst of constitution-making that has taken place around the world since 1989. Along with such other basic choices concerning the structure of constitutional rights as whether to include positive as well as negative rights, constitution drafters have had to decide whether, how, and to what extent private individuals are to be subject to new constitutional rights provisions. Secondly, the very range of situations with which these new constitutions have been designed to deal—from post apartheid and post-military junta to post communism—has challenged scholars to think anew about the nature and functions of constitutions. Are they merely law for the lawmakers or normative charters for reborn societies? Hobbesian social contracts between rulers and ruled, or Lockean ones among equal citizens? In this context, the issue of horizontal effect has been a central one, provoking fresh consideration of how constitutional law differs from other types and sources of law.
One of the major contributions that comparative constitutional law scholars have attempted to make to these real-world transformations has been to clarify the somewhat complex and confusing conceptual framework of the issue and to develop a coherent and user-friendly menu of options so that informed choices can be made. This became necessary because the simple and straightforward bifurcation between vertical and horizontal effect proved too crude to explain the different ways in which constitutional law can impact private actors or to capture the most common types of current constitutional practices. As only a little scratching beneath the surface soon reveals, the fact that under the vertical approach (where it applies) private individuals are not bound by constitutional law in no way entails that it does not govern their legal relations with one another,32 and thereby determine what they can lawfully be authorized to do and which of their interests, choices, and actions may be protected by law. Rather, the traditional vertical position merely forecloses the most direct way in which a constitution might regulate private individuals, by imposing constitutional duties on them.33
(p. 179) Accordingly, in order to attain a richer understanding of the scope of constitutional law in any given system and to appreciate the actual/potential range of answers, it is necessary to supplement the most basic question of vertical or horizontal effect (are individuals as well as governmental actors bound by constitutional law?) with the following three additional ones. First, even with respect to governmental actors, do constitutional rights provisions bind all such actors or only some; and, if only some, which? In particular, do they bind the legislature and the courts? Secondly, does constitutional law apply to private law (and, in common law jurisdictions, to common law) as well as public law? Thirdly, does constitutional law apply to litigation between private individuals?
There is a range of answers to these supplementary questions in practice, with the consequence that the broader question of horizontal effect—the impact of constitutional law on private individuals—is not a simple yes or no issue but rather a matter of degree. Typical legal areas in which this impact occurs include defamation, invasion of privacy suits, and employer–employee law. So, for example, on the first, even though neither the German Basic Law nor the Canadian Charter imposes constitutional duties on private individuals, the Supreme Court of Canada (SCC) has held that Charter rights do not bind the country’s courts.34 By contrast, the German Federal Constitutional Court (FCC) has held that the rights in the Basic Law do bind the courts; indeed, the vast majority of successful constitutional complaints in Germany are against the lower courts. Under the statutory bills of rights enacted in the United Kingdom and both the Australian Capital Territory and state of Victoria, the rights are expressly stated not to bind the legislature, so as to maintain the essential core of parliamentary sovereignty—although the one enacted in New Zealand does—and in the United Kingdom and New Zealand, but not in the two Australian bills of rights, the rights also bind the courts.
On the second question, the issue of whether private law (and especially the Civil Code) is subject to the Basic Law was the cause of a major and prolonged debate in Germany before the FCC fixed its position in the landmark and influential Lüth decision of 1958.35 The common law was held to be subject to Charter rights by the SCC in the case of Dolphin Delivery but, as we shall see shortly, not as fully or equally as private statute law. In South Africa, the common law is subject to both ‘direct’ (under section 8) and ‘indirect’ (under section 39) application of the Bill of Rights.36 Both Australian jurisdictions have excluded the common law from being subject to their statutory bills of rights, and this issue has not yet been definitively resolved in the United Kingdom.
Finally, on the third question, because the Charter applies neither to private individuals nor the courts, the SCC also held in Dolphin Delivery that Charter rights do not apply to common law litigation between private individuals where the only official action is a court order.37 (p. 180) By contrast, the major argument in the United Kingdom that the Human Rights Act does apply to such litigation stems from the inclusion of the courts among the ‘public authorities’ bound to act consistently with Convention rights. In South Africa, the Bill of Rights can apply directly to such suits, although it can also apply indirectly—as in Canada—by developing the common law in line with its ‘spirit, purport and objects’.38
Moreover, those countries that impose constitutional duties on private actors also do so in different ways and to differing degrees. So, for example, in Ireland, the ‘constitutional tort action’ has been implied by the courts from a general textual duty on the state to protect and enforce the rights of individuals.39 By contrast, in South Africa, horizontality is the express, if partial and complex, mandate of sections 8(2), 8(3), and 9(4) of the Constitution.40 On degree, the constitutional courts of Argentina and Colombia have perhaps subjected private actors to constitutional rights most consistently and extensively.41
One principal scholarly achievement in this area has been the creation and refinement of a concept that describes an intermediate third position in between the polar positions of vertical and horizontal effect. Originating in the FCC’s landmark Lüth decision, this concept is known in German as ‘mittelbare Drittwirkung’ and more generally as ‘indirect horizontal effect’, as distinct from the ‘direct’ horizontal effect of the second polar position. In essence, this intermediate position is that although constitutional rights apply directly only to the government, they nonetheless have some degree of indirect application to private actors. More precisely, the distinction between direct and indirect horizontal effect is that between subjecting private conduct to constitutional rights on the one hand (direct), and subjecting private laws to constitutional rights on the other (indirect).42 In other words, there are two different ways in which constitutional rights might regulate private actors, that is have horizontal effect: (1) directly, by governing their conduct; or (2) indirectly, by governing the private laws that structure their legal relations with each other and that they rely on or invoke in civil disputes. This second, indirect method of regulation limits what private actors may lawfully be empowered to do and which of their interests, preferences, and actions can be protected by law. Indirect horizontal effect has been further subdivided into stronger and weaker forms. The former means that private law is fully and equally subject to constitutional law; the latter that courts have a duty to take constitutional law into account in interpreting and developing private law.43
A second focus of comparative scholarship has been exploration of the connections between the structural issue of the scope of constitutional rights and the substantive issue of their content. Given that, as we have seen, indirect horizontal effect subjects (all or most) private law to constitutional rights scrutiny, in any country adopting this position—or, of course, direct horizontal effect—the actual consequences for private individuals turns wholly on the substance (p. 181) of those rights. So, for example, broad substantive constitutional equality or free speech norms (such as incorporating disparate impact or incidental burdens on speech) would result in much traditional contract, property, and tort law being unconstitutional or significantly altered to cohere with constitutional norms, and so have greater impact on individuals. Narrower substantive norms (such as prohibiting only intentional government discrimination or content-specific speech regulation) would not.44 Indeed, this connection has led Tushnet to argue that the threshold ‘state action’ issue is conceptually equivalent to the issue of constitutional social and economic rights: the more extensive a commitment to social and economic rights, the more easily courts will lower barriers of scope; the greater the resistance to such substantive rights, the more courts will employ verticality as a threshold defense technique.45
Similarly, scholars have explored the subtle connections between jurisdictional, institutional, and procedural differences among certain highest courts—whether they are specialist constitutional or generalist courts, whether they have jurisdiction to interpret and apply private, common, or state/provincial law—and the operation of indirect horizontal effect in those countries.46 Indeed, Kumm and Ferreres Comella have argued that given the particular constellation of these factors in Germany, there is effectively no practical difference between direct and indirect horizontal effect.47 Particularly in countries with relatively little private law to interpret, however, as in certain Latin American jurisdictions where courts have stepped in to help to fill legislative vacuums, this is not the case.48
A third important specific issue is the role of constitutional law versus ordinary law/politics in the bestowing of entitlements from the state. To what extent is and should constitutional law be confined to imposing duties of forbearance on (mostly) government action as contrasted with imposing affirmative obligations or duties of action? In other words, should there be constitutional entitlements or only political ones?
Modern constitutional law around the world contains two main types of such entitlements, or positive rights. The first is social and economic rights as, for example, the rights to education, health care, housing, social security, and work.49 The second is protective rights, the right to protection or security from the state against certain types of action by fellow-citizens, such as violence and theft. Constitutions may and do contain both types of positive rights, one type but not the other, or neither.
As ‘second generation’ rights, social and economic constitutional rights are primarily the product of one of the two great modern bursts of constitution-making, the first after 1945 and the second after 1989. The 1947 Italian and the 1996 South African Constitutions are perhaps (p. 182) paradigmatic in this regard. At the same time, however, overall the constitutions of the newly liberated countries of Central and Eastern Europe and South Africa, as well as those of developing nations, more consistently contain significant numbers of social and economic rights than either West European countries or common law jurisdictions.50
Whereas where granted, social and economic rights are typically expressly contained in a constitutional text, constitutional rights to protection are a little more evenly divided between text and judicial implication. So, for example, the constitutions of South Africa, Greece, Switzerland, and Ireland contain express rights to state protection.51 Elsewhere, protective duties have been implied by the judiciary from certain textual rights that seem on their face negative. Thus, the best known and most important protective duties (Schutzpflichten) in Germany concern the right to life and freedom of expression. The FCC famously interpreted the former in the First Abortion Case to require the state to protect the lives of fetuses against such private actors as their mothers, presumptively through the criminal law.52 The right to freedom of broadcasting was also interpreted by the FCC to require state regulation to ensure the protection of citizens’ access to the full range of political opinions necessary for them to make informed decisions at elections.53 Although admittedly an international court, the European Court of Human Rights has been particularly active in inferring protective duties—though not social and economic rights—from the seemingly negatively phrased civil and political rights contained in the European Convention.54
Unlike the case generally with negative constitutional rights, the practical impact of both types of positive constitutional rights is sometimes significantly reduced either by express statements that some or all such rights are not judicially enforceable or by judicial practice to similar effect. Starting with social and economic rights, the constitutions of Ireland, India, and Spain (in the latter case, apart from the right to education) expressly distinguish between rights proper and ‘directive’ or ‘guiding principles’ of social and economic policy that are intended to guide the legislature but are not cognizable by any court. Similarly, apart from the rights to primary education and to ‘aid in distress’, the Swiss Constitution contains a set of ‘social goals’ that is expressly declared to be non-justiciable.
Even where judicially enforceable, constitutional courts have generally been cautious about the scope of their review of social and economic rights and have tended to grant legislatures wide discretion at to the means of fulfilling their affirmative obligation. Accordingly, a reasonableness test has been the norm. In South Africa, this reasonableness standard—relative to available resources—is contained in the text as defining the positive obligations of the state with respect to most of its social and economic rights, and the constitutional court has as a result rejected the proposition that such rights entitle individuals to be provided with ‘a minimum core’. As is well known, however, in the important cases of Grootboom55 and Treatment Action Campaign,56 the South African Constitutional Court (SACC) held that government (p. 183) policies in the areas of housing for the desperately needy and combating mother-to-child transmission of HIV were unreasonable and thus unconstitutional. Moreover, in the latter case, the SACC ordered the government to change its restrictive policy on access to the drug Nevirapine. Both the Japanese and Korean supreme courts have subjected textual rights to minimum living standards to highly deferential reasonableness tests under which government programs were upheld, although both acknowledged that government failure to act at all to promote the constitutional objective would amount to an unconstitutional abuse of discretion.57 The Italian Constitutional Court has also generally interpreted the many social and economic rights contained in the 1947 Constitution as imposing a reasonableness test on government policy in the relevant areas.58 These differences have led Tushnet to classify social and economic rights into three types: (1) merely declaratory; (2) weak substantive rights; and (3) strong substantive rights.59
Similarly, the level of judicial scrutiny to which constitutional rights to protection are subject is typically lower—more deferential—than that afforded to negative rights within the same constitutional regime. Accordingly, protective rights generally grant to governments greater discretion in doing what they must do than negative ones grant in what they cannot. Constitutional rights are typically protected by a proportionality test under which the intensity of scrutiny varies, among other things, with the importance of the right in question. Even the relatively less important rights, though, are subject to the second, minimal impairment prong that provides additional protection above and beyond the first, rationality prong. Protective rights, however, are generally subject only to a form of reasonableness test, rather than the usual proportionality test. That is, courts typically ask only whether the state has reasonably fulfilled its positive duty, a usually lenient and deferential test that rarely results in findings of failure. The reasons for this more lenient test are the standard reasons for wariness about including positive rights in constitutions that we will briefly canvass in the next subsection: that in telling the elected branches of government what they must do, the judiciary lacks institutional expertise and assumes control of the public purse. In Germany, the FCC has not held that the government violated its protective duty with respect to the right to life and health in any case other than the two concerning abortion.60
Apart from descriptive work on particular countries, and here South Africa and the former Soviet-bloc nations have been the major subjects, more general or structural scholarship on positive constitutional rights has mostly focused on the following two issues. First, certain scholars have called into question the distinction between negative and positive rights, and others, while accepting the distinction in theory, have argued that the difference between them in practice is far smaller than assumed. Secondly, there has been a robust debate on whether constitutions should contain positive rights and to what extent, if any, socio-economic rights guarantees in particular make much difference in practice.
Although not the first to do so, Cass Sunstein has expressed skepticism towards the general distinction between negative and positive constitutional rights in that (1) ‘most of the so-called negative rights require government assistance, not governmental abstinence’, giving the examples of the creation and dependence of private property, freedom of contract, and criminal (p. 184) procedure rights on law and courts, and (2) ‘[a]ll constitutional rights [and not only positive ones] have budgetary implications; all constitutional rights cost money’.61
More specifically on practical differences between the two, David Currie pointed out that the effect of common general constitutional anti-discrimination provisions, such as the US equal protection clause, is to create ‘conditional affirmative’ duties of protection and provision of government services. ‘[I]f government undertakes to help A, it may have to help B as well.’ That is, governmental omissions sometimes amount to unlawful discrimination. Moreover, given the practical impossibility of abandoning certain protective laws (such as the criminalization of murder and theft) and government welfare programs, the effect of such anti-discrimination provisions will often be the same as if there were an absolute affirmative constitutional duty to enact the laws or program.62 Currie’s point explains, for example, why in the United States, even absent a constitutional duty to protect the right to life of a fetus as exists in Germany, a finding that a fetus is a ‘person’ for constitutional purposes would probably entail in practice that the state must protect its life along with the other persons it chooses to protect. Failure to do so would likely amount to unconstitutional discrimination.
A second area that has attracted a good deal of scholarly attention is the issue of whether or not constitutions in general—and particularly the new constitutions of countries seeking to make the transition from centralized to market economies in Central and Eastern Europe—should include social and economic rights. Most of the arguments, for and against, have focused on pragmatic or instrumental concerns rather than theoretical, moral, or intrinsic ones. Arguments against such rights include that they either become meaningless promises and thereby threaten to undermine negative rights and the rule of law or are ruinously expensive for poorer countries,63 and that they unduly interfere with the attempt to create market economies and hobble the creation of civil society.64 More generally, it has been argued that pragmatic understanding of the operation of government and particularly the judicial system dooms any hopes that the recognition of positive rights will improve the lives of the intended beneficiaries.65 A more general argument, although perhaps an increasingly naive one as the role of money in politics advances everywhere, is that given whom they benefit—typically the majority of citizens—the standard reasons for constitutionalizing rights rather than leaving them to the ordinary legal and political process do not obviously apply.
One argument for such rights is that court decisions on social rights can bolster elected politicians’ ability to stand up to international financial institutions preaching ‘market fundamentalism’ and thereby enhance public support for democracy.66 Another is that failure to include such rights would be viewed by the people as an attempt by the ruling elite to deprive citizens of their acquired rights and fatally undermine popular support for the new regime.67
(p. 185) Whether and how positive rights in general and social and economic rights in particular are justiciable and enforceable has always been a major part of this issue.68 Two developments in the past decade have enriched this aspect of the scholarly debate. First, both the fact that the SACC declared the final constitution’s social and economic rights to be judicially enforceable and the manner in which it enforced two of them in the Grootboom and Treatment Action Campaign cases mentioned above had a substantial impact on this issue, even persuading some academic commentators partially to change their minds.69 It has also provided fresh evidence and insights on the questions of whether and how social and economic constitutional rights make any real difference to the lives of the poor.70 Secondly, the recent establishment and growth of what has variously been termed ‘weak-form judicial review’ and ‘the new Commonwealth model of constitutionalism’ has provided a new form of judicial review—in which the legislature has the legal power of the final word—that may be particularly appropriate for social and economic rights.71
- T.R.S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001)
- T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993)
- Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007)
- Jeffrey Dunoff and Joel Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Government (2009)
- William N. Eskridge and John A. Ferejohn, ‘Super-Statutes’ (2001) 50 Duke Law Journal 1215
- Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707
- Thomas C. Grey, ‘Do We Have an Unwritten Constitution?’ (1975) 27 Stanford Law Review 703
- Aileen Kavanagh, Constitutional Review under the UK Human Rights Act (2009)
- Mattias Kumm, ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 341
- András Sajó and Renáta Uitz (eds), The Constitution in Private Relations: Expanding Constitutionalism (2005)
- David A. Strauss, ‘Common Law Constitutional Interpretation’ (1996) 63 University of Chicago Law Review 877
- Adam Tomkins, Our Republican Constitution (2005)
- Mark Tushnet, Weak Courts, Strong Rights (2008)
- Lorraine Weinrib, ‘The Postwar Paradigm and American Exceptionalism’ in Sujit Choudhry (ed), The Migration of Constitutional Ideas (2005)
1 Bruce Ackerman, ‘The Rise of World Constitutionalism’ (1997) 83 Virginia Law Review 771. See also Chapter 8.
3 In a few specific contexts, eg the impact of EU law on domestic constitutional rights, some courts and scholars have also addressed the issue of the relative place and position of constitutional law and international law within a national legal system.
6 See Thomas C. Grey, ‘Do We Have an Unwritten Constitution?’ (1975) 27 Stanford Law Review 703; Henry P. Monaghan, ‘Foreword: Constitutional Common Law’ (1975) 89 Harvard Law Review 1; David A. Strauss, ‘Common Law Constitutional Interpretation’ (1996) 63 University of Chicago Law Review 877; Harry H. Wellington, ‘Common Law Rules and Constitutional Double Standards: Some Notes on Adjudication’ (1973) 83 Yale Law Journal 221.
10 See T.R.S. Allan, Law, Liberty, and Justice: The Legal Foundations of British Constitutionalism (1993); Constitutional Justice: A Liberal Theory of the Rule of Law (2001); Sir John Laws, ‘Law and Democracy’ (1995) Public Law 72–93; Sir John Laws ‘The Constitution, Morals and Rights’ (1996) Public Law 622–35.
11 Jeffrey Dunoff and Joel Trachtman (eds), Ruling the World? Constitutionalism, International Law and Global Government (2009); Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of International Law (2009).
13 The two leading manifestos of political constitutionalism are Adam Tomkins, Our Republican Constitution (2005) and Richard Bellamy, Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (2007). Legal constitutionalism is well represented by the works cited in n 10.
14 Graham Gee and Gregoire C.N. Webber, ‘What is a Political Constitution?’ (2010) 30 Oxford Journal of Legal Studies 273–299; Adam Tomkins, ‘The Role of Courts in the Political Constitution’ (2010) 20 University of Toronto Law Journal 1–22, 2.
15 Bellamy (n 13), 145–75; Jeremy Waldron, ‘The Core of the Case against Judicial Review’ (2006) 115 Yale Law Journal 1346.
16 Bellamy (n 13).
17 On constitutional law as a pre-commitment strategy, see Jon Elster, Ulysses Unbound (2000), and as an insurance policy for political losers, see Tom Ginsburg, Judicial Review in New Democracies (2003).
18 Kumm (n 12). It should be noted that having coined this term, Kumm himself believes it is preferable to refer to ‘complete constitutional justice’.
20 See Bellamy (n 13); Tom R. Hickman, ‘In Defence of the Legal Constitution’ (2005) 55 University of Toronto Law Journal 981–1025, 1016; Gee and Webber (n 14).
21 Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2001) 49 American Journal of Comparative Law 707; Mark Tushnet, ‘Alternative Forms of Judicial Review’ (2003) 101 Michigan Law Review; Janet Hiebert, ‘Parliamentary Bills of Rights: An Alternative Model?’ (2006) 69 Modern Law Review 7; Tom Hickman, ‘Constitutional Dialogue, Constitutional Theories and the Human Rights Act 1998’ (2005) Public Law 306.
25 Bellamy (n 13), 15.
26 Recent work, on both sides of this debate, includes Richard Fallon, ‘The Core of an Uneasy Case for Judicial Review’ (2008) 121 Harvard Law Review 1693; Mattias Kumm, ‘Institutionalizing Socratic Contestation: The Rationalist Human Rights Paradigm, Legitimate Authority and the Point of Judicial Review’ (2007) 1 European Journal of Legal Studies 26; Bellamy (n 13); Waldron (n 15).
28 Herbert Wechsler, ‘The Political Safeguards of Federalism: The Role of the States in the Composition of the National Government’ (1954) 54 Columbia Law Review 543; Larry Kramer, ‘Putting the Politics Back Into the Political Safeguards of Federalism’ (2000) 100 Columbia Law Review 215.
29 Choudhry (n 23).
30 Richard S. Kay, ‘The State Action Doctrine, the Public-Private Distinction, and the Independence of Constitutional Law’ (1993) 10 Constitutional Commentary 329. On rule of law more generally, see Chapter 10.
34 Because s 32, the application clause, refers only to legislatures and ‘government,’ with the latter meaning the executive branch only. Retail, Wholesale & Dep’t Store Union v Dolphin Delivery Ltd  2 SCR 573.
36 Frank Michelman, ‘On the Uses of Interpretive “Charity”: Some Notes on Application, Avoidance, Equality and Objective Unconstitutionality from the 2007 Term of the Constitutional Court of South Africa’ (2008) 1 Constitutional Court Review 1.
37 At the same time, the SCC stated in Dolphin Delivery that Charter rights are not entirely irrelevant to such private litigation. Rather, ‘the judiciary ought to apply and develop the principles of the common law in a manner consistent with the fundamental values enshrined in the Constitution’:  2 SCR at 605. This distinction between the direct application of Charter rights and the general influence of Charter values in private, common law litigation has been maintained by the SCC ever since, and it elaborated on the practical significance of the distinction in Hill v Toronto  2 SCR 1130. Arguably, however, more recent cases in which courts have modified the common law in line with Charter values, such as Grant v Torstar Corp  SCC 61 (creating a new defense in common law defamation actions of ‘reasonable communication on matters of public interest’), have rendered the distinction a very fine one in practice.
38 Michelman (n 36).
40 ‘A provision of the Bill of Rights binds a natural or juristic person if, and to the extent that, it is applicable, taking account of the nature of the right and the nature of any duty imposed by the right’: South African Constitution, s 8(2). Section 9(4) imposes a duty on private individuals not to discriminate against others on the same comprehensive set of grounds applicable to the state.
41 See Rivera-Perez (n 19).
42 Gardbaum (n 33); Mark Tushnet, ‘The Issue of State Action/Horizontal Effect in Comparative Constitutional Law’ (2003) International Journal of Constitutional Law 79–98; Halton Cheadle, ‘Third Party Effect in the South African Constitution’ in András Sajó and Renáta Uitz (eds), The Constitution in Private Relations: Expanding Constitutionalism (2005).
43 Gavin Phillipson, ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’ (1999) 62 Modern Law Review 824; Gardbaum (n 33).
45 Tushnet (n 42).
46 Ibid; Mattias Kumm and Victor Ferreres Comella, ‘What is So Special about Constitutional Rights in Private Litigation? A Comparative Analysis of the Function of State Action Requirements and Indirect Horizontal Effect’ in Sajó and Uitz (n 42), 241–86; Michelman (n 36).
47 Tushnet (n 42).
48 Rivera-Perez (n 19).
49 Not all social and economic rights are positive rights. Eg the right to choose an occupation and the right to educate one’s child privately—where recognized by constitutional law—may (but need not) be exclusively negative in scope, requiring only governmental forbearance from prohibiting business entry and banning private schools.
51 See eg South African Constitution, s 12(1): ‘Everyone has the right to freedom and security of the person, which includes the right … to be free from all forms of violence from either public or private sources.’
60 Gerald L. Neuman, ‘Casey in the Mirror: Abortion, Abuse and the Right to Protection in the United States and Germany’ (2005) 43 American Journal of Comparative Law 273–314. On abortion more generally, see Chapter 51.
61 Cass R. Sunstein, ‘Why Does the American Constitution Lack Social and Economic Guarantees’ in Michael Ignatieff (ed), American Exceptionalism and Human Rights (2005). For a response to this argument, see Gardbaum (n 50), 445–6.
68 Matthew Craven, ‘The Justiciability of Economic, Social and Cultural Rights’ in Richard Burchill et al (eds), Economic, Social and Cultural Rights: Their Implementation in United Kingdom Law (1999); Martin Scheinin, ‘Economic and Social Rights as Legal Rights’ in Asbjorn Eide et al (eds), Economic, Social and Cultural Rights: A Textbook (2001).