International human rights law (IHRL) is the body of international law designed to promote human rights
on social, regional, and domestic levels. As a form of international
law, international human rights law are primarily made up of treaties, agreements between sovereign states intended to have binding legal effect between the parties that have agreed to them; and customary international law. Other international human rights instruments,
while not legally binding, contribute to the implementation,
understanding and development of international human rights law and have
been recognized as a source of political obligation.
International human rights law, which governs the conduct of a
state towards its people in peacetime is traditionally seen as distinct
from international humanitarian law
which governs the conduct of a state during armed conflict, although
the two branches of law are complementary and in some ways overlap.
A more systemic perspective explains that international
humanitarian law represents a function of international human rights
law; it includes general norms that apply to everyone at all time as
well as specialized norms which apply to certain situations such as
armed conflict between both state and military occupation (i.e. IHL) or
to certain groups of people including refugees (e.g. the 1951 Refugee Convention), children (the Convention on the Rights of the Child), and prisoners of war (the 1949 Third Geneva Convention).
In 2006, the United Nations Commission on Human Rights was replaced with the United Nations Human Rights Council
for the enforcement of international human rights law. The changes
prophesied a more structured organization along with a requirement to
review human rights cases every four years. The United Nations Sustainable Development Goal 10 also targets the promotion of legislation and policies towards reducing inequality.
More broadly, the UDHR has become an authoritative human rights reference. It has provided the basis for subsequent international human rights instruments that form non-binding, but ultimately authoritative international human rights law.
Regional
systems of international human rights law supplement and complement
national and international human rights law by protecting and promoting
human rights in specific areas of the world. There are three key
regional human rights instruments which have established human rights
law on a regional basis:
the European Social Charter
for Europe of 1961, in force since 1965 (whose complaints mechanism,
created in 1995 under an Additional Protocol, has been in force since
1998); and
The African Union (AU) is a supranational union consisting of 55 African countries.
Established in 2001, the AU's purpose is to help secure Africa's
democracy, human rights, and a sustainable economy, in particular by
bringing an end to intra-African conflict and creating an effective and
productive common market.
Pursuant to Article 63 (whereby it was to "come into force three
months after the reception by the Secretary General of the instruments
of ratification or adherence of a simple majority" of the OAU's member
states), the African Charter on Human and Peoples' Rights came into
effect on 21 October 1986, in honour of which 21 October was declared
African Human Rights Day.
The African Commission on Human and Peoples' Rights (ACHPR) is a quasi-judicial organ of the African Union,
tasked with promoting and protecting human rights and collective
(peoples') rights throughout the African continent, as well as with
interpreting the African Charter on Human and Peoples' Rights, and
considering individual complaints of violations of the Charter. The
commission has three broad areas of responsibility:
In pursuit of these goals, the commission is mandated to "collect
documents, undertake studies and researches on African problems in the
field of human and peoples' rights, organise seminars, symposia and
conferences, disseminate information, encourage national and local
institutions concerned with human and peoples' rights and, should the
case arise, give its views or make recommendations to governments."
With the creation of the African Court on Human and Peoples' Rights
(under a protocol to the Charter which was adopted in 1998 and entered
into force in January 2004), the commission will have the additional
task of preparing cases for submission to the Court's jurisdiction.
In a July 2004 decision, the AU Assembly resolved that the future Court
on Human and Peoples' Rights would be integrated with the African Court
of Justice.
The Court of Justice of the African Union is intended to be the "principal judicial organ of the Union".[19][20]
Although it has not yet been established, it is intended to take over
the duties of the African Commission on Human and Peoples' Rights, as
well as to act as the supreme court of the African Union, interpreting
all necessary laws and treaties. The Protocol establishing the African
Court on Human and Peoples' Rights entered into force in January 2004,
but its merging with the Court of Justice has delayed its
establishment. The Protocol establishing the Court of Justice will come
into force when ratified by fifteen countries.
There are many countries in Africa accused of human rights violations by the international community and NGOs.
The Organization of American States
(OAS) is an international organization headquartered in Washington, DC.
Its members are the thirty-five independent nation-states of the
Americas.
Over the course of the 1990s, with the end of the Cold War, the return to democracy in Latin America, and the thrust toward globalisation, the OAS made major efforts to reinvent itself to fit the new context. Its stated priorities now include the following:
strengthening democracy;
working for peace;
protecting human rights;
combating corruption;
the rights of indigenous peoples; and
promoting sustainable development.
The Inter-American Commission on Human Rights (IACHR) is an autonomous organ of the Organization of American States, also based in Washington, D.C. Along with the Inter-American Court of Human Rights, based in San José, Costa Rica, it is one of the bodies that comprise the inter-American system for the promotion and protection of human rights.
The IACHR is a permanent body which meets in regular and special
sessions several times a year to examine allegations of human rights
violations in the hemisphere. Its human rights duties stem from three
documents:
The Inter-American Court of Human Rights was established in 1979 with
the purpose of enforcing and interpreting the provisions of the
American Convention on Human Rights. Its two main functions are
therefore adjudicatory and advisory:
Under the former, it hears and rules on the specific cases of human rights violations referred to it.
Under the latter, it issues opinions on matters of legal
interpretation brought to its attention by other OAS bodies or member
states.
Many countries in the Americas, including Colombia, Cuba, Mexico and Venezuela, have been accused of human rights violations.
The Council of Europe,
founded in 1949, is the oldest organisation working for European
integration. It is an international organisation with legal personality
recognised under public international law, and has observer status at
the United Nations. The seat of the council is in Strasbourg in France.
The Council of Europe is responsible for both the European Convention on Human Rights and the European Court of Human Rights.
These institutions bind the council's members to a code of human rights
which, although strict, is more lenient than that of the UN Charter on
human rights.
The Council of Europe is separate from the European Union,
but the latter is expected to accede to the European Convention on
Human Rights. The Council includes all the member states of European
Union. The EU also has a separate human rights document, the Charter of Fundamental Rights of the European Union.
The European Convention on Human Rights has since 1950 defined and guaranteed human rights and fundamental freedoms in Europe.
All 47 member states of the Council of Europe have signed this
convention, and are therefore under the jurisdiction of the European
Court of Human Rights in Strasbourg. In order to prevent torture and inhuman or degrading treatment, the Committee for the Prevention of Torture was established.
The European Court of Human Rights is the only international
court with jurisdiction to deal with cases brought by individuals rather
than states. In early 2010, the court had a backlog of over 120,000 cases and a multi-year waiting list. About one out of every twenty cases submitted to the court is considered admissible. In 2007, the court issued 1,503 verdicts. At the current rate of proceedings, it would take 46 years for the backlog to clear.
Although these same international bodies also hold jurisdiction
over cases regarding international humanitarian law, it is crucial to
recognise, as discussed above, that the two frameworks constitute
different legal regimes.
The enforcement of international human rights law is the responsibility of the nation state; it is the primary responsibility of the State to make the human rights of its citizens a reality.
In practice, many human rights are difficult to enforce legally,
due to the absence of consensus on the application of certain rights,
the lack of relevant national legislation or of bodies empowered to take
legal action to enforce them.
In over 110 countries, national human rights institutions (NHRIs) have been set up to protect, promote or monitor human rights with jurisdiction in a given country. Although not all NHRIs are compliant with the Paris Principles, the number and effect of these institutions is increasing.
The Paris Principles
were defined at the first International Workshop on National
Institutions for the Promotion and Protection of Human Rights in Paris
from 7 to 9 October 1991, and adopted by UN Human Rights Commission
Resolution 1992/54 of 1992 and General Assembly Resolution 48/134 of
1993. The Paris Principles list a number of responsibilities for NHRIs.
Universal jurisdiction
is a controversial principle in international law, whereby states claim
criminal jurisdiction over people whose alleged crimes were committed
outside the boundaries of the prosecuting state, regardless of
nationality, country of residence or any other relationship to the
prosecuting country. The state backs its claim on the grounds that the
crime committed is considered a crime against all, which any state is
authorized to punish. The concept of universal jurisdiction is therefore closely linked to the idea that certain international norms are erga omnes, or owed to the entire world community, as well as the concept of jus cogens.
In 1993, Belgium
passed a "law of universal jurisdiction" to give its courts
jurisdiction over crimes against humanity in other countries. In 1998, Augusto Pinochet was arrested in London following an indictment by Spanish judge Baltasar Garzón under the universal-jurisdiction principle.
Adolf Eichmann who was the former Nazi SS lieutenant colonel accused of
overseeing the transfer of Jews to Holocaust death camps also
persecuted in Israel in 1961. Adolf was living in Argentina after the
war.
The principle is supported by Amnesty International and other human rights organisations,
which believe that certain crimes pose a threat to the international
community as a whole, and that the community has a moral duty to act.
Others, like Henry Kissinger,
argue that "widespread agreement that human rights violations and
crimes against humanity must be prosecuted has hindered active
consideration of the proper role of international courts. Universal
jurisdiction risks creating universal tyranny—that of judges".
Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts
should not be subject to improper influence from the other branches of
government or from private or partisan interests. Judicial independence
is important for the idea of separation of powers.
Many countries deal with the idea of judicial independence through different means of judicial selection, or choosing judges. One way to promote judicial independence is by granting life tenure or long tenure for judges, which ideally frees them to decide cases and make rulings according to the rule of law and judicial discretion,
even if those decisions are politically unpopular or opposed by
powerful interests. This concept can be traced back to 18th-century
England.
In some countries, the ability of the judiciary to check the legislature is enhanced by the power of judicial review.
This power can be used, for example, by mandating certain action when
the judiciary perceives that a branch of government is refusing to
perform a constitutional duty or by declaring laws passed by the
legislature unconstitutional.
Judicial independence serves as a safeguard for the rights and privileges provided by a limited constitution and prevents executive and legislative encroachment upon those rights. It serves as a foundation for the rule of law and democracy.
The rule of law means that all authority and power must come from an
ultimate source of law. Under an independent judicial system, the courts
and its officers are free from inappropriate intervention in the judiciary's
affairs. With this independence, the judiciary can safeguard people's
rights and freedoms which ensure equal protection for all.
The effectiveness of the law and the respect that people have for
the law and the government which enacts it is dependent upon the
judiciary's independence to mete out fair decisions. Furthermore, it is a
pillar of economic growth as multinational businesses and investors
have confidence to invest in the economy of a nation who has a strong
and stable judiciary that is independent of interference.
The judiciary's role in deciding the validity of presidential and
parliamentary elections also necessitates independence of the judiciary.
Disadvantages
The
disadvantages of having a judiciary that is seemingly too independent
include possible abuse of power by judges. Self-interest, ideological
dedication and even corruption may influence the decisions of judges
without any checks and balances in place to prevent this abuse of power if the judiciary is completely independent.
The relationship between the judiciary and the executive is a complex
series of dependencies and inter-dependencies which counter-check each
other and must be carefully balanced. One can be too independent of the
other. Furthermore, judicial support of the executive is not as negative
as it seems as the executive is the branch of government with the
greatest claim to democratic legitimacy. Roger K. Warren writes that if
the judiciary and executive are constantly feuding, no government can
function well.
An extremely independent judiciary would also lack judicial
accountability, which is the duty of a public decision-maker to explain
and justify a decision and to make amendments where a decision causes
injustice or problems. Judges are not required to give an entire account
of their rationale behind decisions, and are shielded against public
scrutiny and protected from legal repercussions. However judicial
accountability can reinforce judicial independence as it could show that
judges have proper reasons and rationales for arriving at a particular
decision. Warren opines that while judges are not democratically
accountable to the people, the key is for judges to achieve equilibrium
between accountability and independence to ensure that justice is
upheld.
Economic basis
Constitutional economics
studies issues such as the proper distribution of national wealth
including government spending on the judiciary. In transitional and
developing countries, spending on the judiciary may be controlled by the
executive. This undermines the principle of judicial independence
because it creates a financial dependence of the judiciary on the
executive. It is important to distinguish between two methods of
corruption of the judiciary: the state (through budget planning and
privileges) being the most dangerous, and private. State corruption of
the judiciary can impede the ability of businesses to optimally
facilitate the growth and development of a market economy.
In some countries, the constitution also prohibits the legislative branch from reducing salaries of sitting judges.
Development of the concept
National and international developments
The
development of judicial independence has been argued to involve a cycle
of national law having an impact on international law, and
international law subsequently impacting national law.
This is said to occur in three phases: the first phase is characterized
by the domestic development of the concept of judicial independence,
the second by the spread of these concepts internationally and their
implementation in international law, and the third by the implementation
in national law of these newly formulated international principles of
judicial independence.
A notable example illustrating this cycle is the United Kingdom.
The first phase occurred in England with the original conception of
judicial independence in the Act of Settlement 1701.
The second phase was evident when England's concepts regarding judicial
independence spread internationally, and were adopted into the domestic
law of other countries; for instance, England served as the model for Montesquieu’s separation of powers doctrine, and the Founding Fathers of the US Constitution
used England as their dominant model in formulating the Constitution's
Article III, which is the foundation of American judicial independence. Other common law countries, including Canada, Australia, and India, also adopted the British model of judicial independence.
In recent decades the third phase of judicial independence has been evident in the UK,
as it has been significantly influenced by judicial independence
principles developed by international human rights constitutional
documents. The European Court of Human Rights
(ECtHR) has had a significant impact on the conceptual analysis of
judicial independence in England and Scotland. This process began in the
1990s with the ECtHR hearing UK cases and, more significantly, in the
application of the European Convention on Human Rights in British law through the Human Rights Act 1998, which came into force in the UK in 2000.
Where British national law had previously impacted the international development of judicial independence, the British Constitutional Reform Act 2005
marked a shift, with international law now impacting British domestic
law. The Constitutional Reform Act dramatically reformed government
control over the administration of justice in England and Wales;
importantly, it discontinued the position of the Lord Chancellor,
one of the country's oldest constitutional offices, who was entrusted
with a combination of legislative, executive, and judicial capacities. The Lord Chancellor served as speaker of the Upper House of Parliament, the House of Lords;
as a member of the executive branch and member of the senior cabinet;
and as the head of the judiciary. Historically, the appellate function
had a connection with the executive branch due to the types of cases
typically heard – impeachment and the hearing of felony charges against peers.
The Constitutional Reform Act established new lines of demarcation
between the Lord Chancellor and the judiciary, transferring all the
judicial functions to the judiciary and entrusting the Lord Chancellor
only with what are considered administrative and executive matters. In
addition, the Constitutional Reform Act replaced the Lord Chancellor by
the Lord Chief Justice as head of the judiciary, separated the judicial Appellate Committee of the House of Lords from the legislative parliament, reforming it as the Supreme Court, and creating a Judicial Appointments Commission. The creation of the Supreme Court was important, for it finally separated the highest court of appeal from the House of Lords.
Thus, the United Kingdom, where judicial independence began over
three hundred years ago, illustrates the interaction over time of
national and international law and jurisprudence in the area of judicial
independence. In this process, concepts and ideas have become enriched
as they have been implemented in successive judicial and political
systems, as each system has enhanced and deepened the concepts and ideas
it actualized. In addition to the UK, similar developments of
conceptual cross-fertilization can be seen internationally, for example
in European Union law, in civil law countries such as Austria, and in other common law jurisdictions including Canada.
International standards
The International Association of Judicial Independence and World Peace
produced the Mt. Scopus International Standards of Judicial
Independence between 2007 and 2012. These built on the same
association's New Delhi Minimum Standards on Judicial independence
adopted in 1982 and their Montréal Universal Declaration on the
Independence of Justice in 1983. Other influences they cite for the
standards include the UN Basic Principles of Judicial Independence from
1985, the Burgh House Principles of Judicial Independence in
International Law (for the international judiciary), Tokyo Law Asia
Principles, Council of Europe Statements on judicial independence
(particularly the Recommendation of the Committee of Ministers to Member
States on the independence, efficiency and role of judges), the Bangalore Principles of Judicial Conduct 2002, and the American Bar Association's revision of its ethical standards for judges.
The justice system
In recent years, the principle of judicial independence has been described as one of the core values of the justice system.
Judicial independence metrics
Judicial
independence metrics allow a quantitative analysis of judicial
independence for individual countries. One judicial independence metric
is the high court independence index in the V-Dem Dataset, where higher values indicate higher independence, shown below for individual countries.
There was a struggle to establish judicial independence in colonial Australia, but by 1901 it was entrenched in the Australian constitution, including the separation of judicial power such that the High Court of Australia
held in 2004 that all courts capable of exercising federal judicial
power must be, and must appear to be, independent and impartial. Writing in 2007 Chief Justice of AustraliaMurray Gleeson stated that Australians largely took judicial independence for granted and the details were not matters of wide interest. No federal judge and only one supreme court judge has been removed for misconduct since 1901.
Immunity from suit for judicial acts, security of tenure, and fixed
remuneration are all established parts of judicial independence in
Australia. The appointment of judges remains exclusively at the
discretion of the executive which gives rise to concerns expressed that
judicial appointments are political and made for political gain.
Issues continue to arise in relation to dealing with judicial
misconduct not warranting removal and incapacity of judges. In 2013 Chief Justice of NSWTom Bathurst
identified the way in which judicial and court performance was measured
as one of the most substantial risks to the separation of powers in
Australia.
Canada
Canada has a level of judicial independence entrenched in its Constitution, awarding superior court justices various guarantees to independence under sections 96 to 100 of the Constitution Act, 1867.
These include rights to tenure (although the Constitution has since
been amended to introduce mandatory retirement at age 75) and the right
to a salary determined by the Parliament of Canada (as opposed to the executive). In 1982 a measure of judicial independence was extended to inferior courts specializing in criminal law (but not civil law) by section 11 of the Canadian Charter of Rights and Freedoms, although in the 1986 case Valente v. The Queen it was found these rights are limited. They do, however, involve tenure, financial security and some administrative control.
The year 1997 saw a major shift towards judicial independence, as the Supreme Court of Canada in the Provincial Judges Reference
found an unwritten constitutional norm guaranteeing judicial
independence to all judges, including civil law inferior court judges.
The unwritten norm is said to be implied by the preamble to the Constitution Act, 1867. Consequently, judicial compensation committees such as the Judicial Compensation and Benefits Commission
now recommend judicial salaries in Canada.
There are two types of judicial independence: institutional independence
and decisional independence. Institutional independence means the
judicial branch is independent from the executive and legislative
branches. Decisional independence is the idea that judges should be able
to decide cases solely based on the law and facts, without letting the
media, politics or other concerns sway their decisions, and without
fearing penalty in their careers for their decisions.
Hong Kong
In Hong Kong,
independence of the judiciary has been the tradition since the
territory became a British crown colony in 1842. After the 1997 transfer
of sovereignty of Hong Kong to the People's Republic of China pursuant to the Sino-British Joint Declaration, an international treaty registered with the United Nations, independence of the judiciary, along with continuation of English common law, has been enshrined in the territory's constitutional document, the Basic Law.
Judicial independence in Singapore is protected by the Constitution of Singapore, statutes such as the State Courts Act and Supreme Court of Judicature Act, and the common law. To safeguard judicial independence, Singapore law lays down special procedures to be followed before the conduct of Supreme Courtjudges may be discussed in Parliament
and for their removal from office for misconduct, and provides that
their remuneration may not be reduced during their tenure. By statute,
judicial officers of the State Courts,
and the Registrar, Deputy Registrar and assistant registrars of the
Supreme Court have immunity from civil suits, and are prohibited from
hearing and deciding cases in which they are personally interested. The
common law provides similar protections and disabilities for Supreme
Court judges.
The Chief Justice and other Supreme Court judges are appointed by the President of Singapore acting on the advice of the Cabinet of Singapore.
The President must consult the Chief Justice when appointing other
judges, and may exercise personal discretion to refuse to make an
appointment if he does not concur with the Cabinet's advice. Supreme
Court justices enjoy security of tenure
up to the age of 65 years, after which they cease to hold office.
However, the Constitution permits such judges to be re-appointed on a
term basis.
During the middle ages, under the Norman monarchy of the Kingdom of England, the king and his Curia Regis held judicial power. Judicial independence began to emerge during the early modern period;
more courts were created and a judicial profession grew. By the
fifteenth century, the king's role in this feature of government became
small. Nevertheless, kings could still influence courts and dismiss judges. The Stuart dynasty used this power frequently in order to overpower the Parliament of England. After the Stuarts were removed in the Glorious Revolution of 1688, some advocated guarding against royal manipulation of the judiciary. King William III approved the Act of Settlement 1701, which established tenure for judges unless Parliament removed them.
Furthermore, the independence of the judiciary is guaranteed by the Constitutional Reform Act 2005.
In order to try to promote the independence of the judiciary, the
selection process is designed to minimize political interference. The
process focuses on senior members of the judiciary rather than on
politicians. Part 2 of the Tribunals, Courts and Enforcement Act 2007 aims to increase diversity among the judiciary.
The pay of judges is determined by an independent pay review
body. It makes recommendations to the government after taking evidence
from a variety of sources. The government accepts these recommendations
and will traditionally implement them fully. As long as judges hold
their positions in "good order," they remain in post until they wish to
retire or until they reach the mandatory retirement age of 70.
Until 1 January 2010, the legal profession was self-regulating;
with responsibility for implementing and enforcing its own professional
standards and disciplining its own members. The bodies which performed
this function were the Bar Council and the Law Society. However, this self-regulation came to an end when approved regulators came under the regulation of the Legal Services Board, composed of non-lawyers, following the passage of the Legal Services Act 2007. This saw the establishment of the Solicitors Regulation Authority to regulate solicitors and the Bar Standards Board to regulate barristers.
...both of the supreme and inferior
Courts, shall hold their Offices during good Behavior, and shall, at
stated Times, receive for their Services a Compensation which shall not
be diminished during their Continuance in Office.
The President is free to appoint any person to the federal bench, yet typically he consults with the American Bar Association, whose Standing Committee on the Federal Judiciary rates each nominee "Well Qualified," "Qualified" or "Not Qualified."
State courts
State courts deal with independence of the judiciary in many ways, and several forms of judicial selection are used for both trial courts and appellate courts (including state supreme courts), varying between states and sometimes within states. In some states, judges are elected (sometime on a partisan ballot, other times on a nonpartisan one), while in others they are appointed by the governor or state legislature.
The 2000 case of Bush v. Gore,
in which a majority of the Supreme Court, including some appointees of
President George H. W. Bush, overruled challenges to the election of the
George W. Bush then pending in the Florida Supreme Court,
whose members had all been appointed by Democratic governors, is seen
by many as reinforcing the need for judicial independence, both with
regard to the Florida Supreme Court and the US Supreme Court. This case
has increased focus and attention on judicial outcomes as opposed to the
traditional focus on judicial qualifications.
Constitutionalism is "a compound of ideas, attitudes, and
patterns of behavior elaborating the principle that the authority of
government derives from and is limited by a body of fundamental law".
Constitutionalism is descriptive of
a complicated concept, deeply embedded in historical experience, which
subjects the officials who exercise governmental powers to the
limitations of a higher law. Constitutionalism proclaims the
desirability of the rule of law
as opposed to rule by the arbitrary judgment or mere fiat of public
officials ... Throughout the literature dealing with modern public law
and the foundations of statecraft the central element of the concept of
constitutionalism is that in political society government officials are
not free to do anything they please in any manner they choose; they are
bound to observe both the limitations on power and the procedures which
are set out in the supreme, constitutional law of the community. It may
therefore be said that the touchstone of constitutionalism is the
concept of limited government under a higher law.
Definition
Constitutionalism has prescriptive and descriptive uses. Law professor Gerhard Casper
captured this aspect of the term in noting, "Constitutionalism has both
descriptive and prescriptive connotations. Used descriptively, it
refers chiefly to the historical struggle for constitutional recognition
of the people's right to 'consent' and certain other rights, freedoms,
and privileges. Used prescriptively, its meaning incorporates those
features of government seen as the essential elements of the...
Constitution".
Descriptive
One
example of constitutionalism's descriptive use is law professor Bernard
Schwartz's five volume compilation of sources seeking to trace the
origins of the U.S. Bill of Rights.
Beginning with English antecedents going back to Magna Carta (1215),
Schwartz explores the presence and development of ideas of individual
freedoms and privileges through colonial charters and legal
understandings. Then in carrying the story forward, he identifies
revolutionary declarations and constitutions, documents and judicial
decisions of the Confederation period and the formation of the federal
Constitution. Finally, he turns to the debates over the federal
Constitution's ratification that ultimately provided mounting pressure
for a federal bill of rights. While hardly presenting a straight line,
the account illustrates the historical struggle to recognize and
enshrine constitutional rights and principles in a constitutional order.
Prescriptive
In
contrast to describing what constitutions are, a prescriptive approach
addresses what a constitution should be. As presented by the Canadian
philosopher Wil Waluchow, constitutionalism embodies
the idea ... that government can
and should be legally limited in its powers, and that its authority
depends on its observing these limitations. This idea brings with it a
host of vexing questions of interest not only to legal scholars, but to
anyone keen to explore the legal and philosophical foundations of the
state.
One example of this prescriptive approach was the project of the National Municipal League to develop a model state constitution.
Constitutionalism vs. Constitution
The study of constitutions is not necessarily synonymous with the study of constitutionalism.
Legal historian Christian G. Fritz
distinguishes between "constitutional questions", examining how the
constitution was interpreted and applied to distribute power and
authority as the new nation struggled with problems of war and peace,
taxation and representation, and "questions of constitutionalism —how to
identify the collective sovereign, what powers the sovereign possessed,
and how one recognized when that sovereign acted." He noted that
"questions of constitutionalism could not be answered by reference to
given constitutional text or even judicial opinions" but were
"open-ended questions drawing upon competing views".
A similar distinction was drawn by British constitutional scholar A.V. Dicey
in assessing Britain's unwritten constitution. Dicey noted a difference
between the "conventions of the constitution" and the "law of the
constitution". The "essential distinction" between the two concepts was
that the law of the constitution was made up of "rules enforced or
recognised by the Courts", making up "a body of 'laws' in the proper
sense of that term." In contrast, the conventions of the constitution
consisted "of customs, practices, maxims, or precepts which are not
enforced or recognised by the Courts" but "make up a body not of laws,
but of constitutional or political ethics".
Core features
Magna Carta of England (the "Great Charter") created in 1215 is regarded as one of the greatest constitutional documents of all times.
Fundamental law and legitimacy of government
One of the most salient features of constitutionalism is that it describes and prescribes both the source and the limits of government power
derived from fundamental law. William H. Hamilton has captured this
dual aspect by noting that constitutionalism "is the name given to the
trust which men repose in the power of words engrossed on parchment to
keep a government in order."
Moreover, whether reflecting a descriptive or prescriptive focus,
treatments of the concept of constitutionalism all deal with the
legitimacy of government. One recent assessment of American
constitutionalism, for example, notes that the idea of constitutionalism
serves to define what it is that "grants and guides the legitimate
exercise of government authority".
Similarly, historian Gordon S. Wood described the most "advanced
thinking" on the nature of constitutions wherein the constitution was
conceived (according to Demophilis, who was possibly George Bryan) a "sett of fundamental rules by which even the supreme power of the state shall be governed."
Ultimately, American constitutionalism came to rest on the collective
sovereignty of the people, the source that legitimized American
governments.
Civil rights and liberties
Constitutionalism
is not simply about the power structure of society. It also asks for a
strong protection of the interests of citizens, civil rights as well as civil liberties, especially for the social minorities, and has a close relation with democracy.
The United Kingdom has had basic laws limiting governmental power for
centuries. Historically, there has been little political support for
introducing a comprehensive written or codified constitution in the UK.
However, several commentators and reformers have argued for a new
British Bill of Rights to provide liberty, democracy and the rule of law
with more effective constitutional protection.
Criticisms
Legal scholar Jeremy Waldron contends that constitutionalism is often undemocratic:
Constitutions are not just about
restraining and limiting power; they are about the empowerment of
ordinary people in a democracy and allowing them to control the sources
of law and harness the apparatus of government to their aspirations.
That is the democratic view of constitutions, but it is not the
constitutionalist view.... Of course, it is always possible to present
an alternative to constitutionalism as an alternative form of
constitutionalism: scholars talk of "popular constitutionalism"
or "democratic constitutionalism."... But I think it is worth setting
out a stark version of the antipathy between constitutionalism and
democratic or popular self-government, if only because that will help us
to measure more clearly the extent to which a new and mature theory of
constitutional law takes proper account of the constitutional burden of
ensuring that the people are not disenfranchised by the very document
that is supposed to give them their power.
Constitutionalism has also been the subject of criticism by Murray Rothbard,
who attacked constitutionalism as being incapable of restraining
governments and not protecting the rights of citizens from their
governments:
[i]t is true that, in the United States,
at least, we have a constitution that imposes strict limits on some
powers of government. But, as we have discovered in the past century, no
constitution can interpret or enforce itself; it must be interpreted by
men. And if the ultimate power to interpret a constitution is
given to the government's own Supreme Court, then the inevitable
tendency is for the Court to continue to place its imprimatur on
ever-broader powers for its own government. Furthermore, the highly
touted "checks and balances" and "separation of powers"
in the American government are flimsy indeed, since in the final
analysis all of these divisions are part of the same government and are
governed by the same set of rulers.[20]
Constitutionalism by nations
Used
descriptively, the concept of constitutionalism can refer chiefly to
the historical struggle for constitutional recognition of the people's
right to "consent" and certain other rights, freedoms, and privileges.
On the other hand, the prescriptive approach to constitutionalism
addresses what a constitution should be. Two observations might be
offered about its prescriptive use.
There is often confusion in equating the presence of a written
constitution with the conclusion that a state or polity is one based
upon constitutionalism. As noted by David Fellman,
constitutionalism "should not be taken to mean that if a state has a
constitution, it is necessarily committed to the idea of
constitutionalism. In a very real sense... every state may be said to
have a constitution, since every state has institutions which are at the
very least expected to be permanent, and every state has established
ways of doing things". But even with a "formal written document labelled
'constitution' which includes the provisions customarily found in such a
document, it does not follow that it is committed to
constitutionalism...."
Often the word "constitutionalism" is used in a rhetorical sense,
as a political argument that equates the views of the speaker or writer
with a preferred view of the constitution. For instance, University of
Maryland Constitutional History Professor Herman Belz's critical
assessment of expansive constitutional construction notes that
"constitutionalism... ought to be recognized as a distinctive ideology
and approach to political life.... Constitutionalism not only
establishes the institutional and intellectual framework, but it also
supplies much of the rhetorical currency with which political
transactions are carried on." Similarly, Georgetown University Law Center Professor Louis Michael Seidman
noted as well the confluence of political rhetoric with arguments
supposedly rooted in constitutionalism. In assessing the "meaning that
critical scholars attributed to constitutional law in the late twentieth
century," Professor Seidman notes a "new order... characterized most
prominently by extremely aggressive use of legal argument and rhetoric"
and as a result "powerful legal actors are willing to advance arguments
previously thought out-of-bounds. They have, in short, used legal
reasoning to do exactly what crits claim legal reasoning always does—put
the lipstick of disinterested constitutionalism on the pig of raw
politics."
Constitutionalism of the United States
has been defined as a complex of ideas, attitudes and patterns
elaborating the principle that the authority of government derives from
the people, and is limited by a body of fundamental law. These ideas,
attitudes and patterns, according to one analyst, derive from "a dynamic
political and historical process rather than from a static body of
thought laid down in the eighteenth century".
In U.S. history, constitutionalism, in both its descriptive and
prescriptive sense, has traditionally focused on the federal
constitution. Indeed, a routine assumption of many scholars has been
that understanding "American constitutionalism" necessarily entails the
thought that went into the drafting of the federal constitution and the
American experience with that constitution since its ratification in
1789.
There is a rich tradition of state constitutionalism that offers broader insight into constitutionalism in the United States.
While state constitutions and the federal constitution operate
differently as a function of federalism from the coexistence and
interplay of governments at both a national and state level, they all
rest on a shared assumption that their legitimacy comes from the
sovereign authority of the people or popular sovereignty. This underlying premise, embraced by the American revolutionaries with the Declaration of Independence unites American constitutional tradition.
Both experience with state constitutions before and after the
federal constitution as well as the emergence and operation of the
latter reflect an ongoing struggle over the idea that all governments in
America rested on the sovereignty of the people for their legitimacy.
Starting with the proposition that "'Constitutionalism' refers to the position or practice that government be limited by a constitution,
usually written," analysts take a variety of positions on what the
constitution means. For instance, they describe the document as a
document that may specify its relation to statutes, treaties, executive
and judicial actions, and the constitutions or laws of regional
jurisdictions. This prescriptive use of Constitutionalism is also
concerned with the principles of constitutional design, which includes the principle that the field of public action be partitioned between delegated powers to the government and the rights
of individuals, each of which is a restriction of the other, and that
no powers be delegated that are beyond the competence of government.
The United Kingdom is perhaps the best instance of constitutionalism in a country that has an uncodified constitution. A variety of developments in 17th century England, including the Constitutional Monarchy and "the protracted struggle for power between King and Parliament was accompanied by an efflorescence of political ideas in which the concept of countervailing powers was clearly defined,"
led to a well-developed polity with multiple governmental and private institutions that counter the power of the state.
From the mid-sixteenth to the late eighteenth century, the Polish–Lithuanian Commonwealth utilized the liberum veto, a form of unanimity voting rule, in its parliamentary deliberations. The "principle of liberum veto
played an important role in [the] emergence of the unique Polish form
of constitutionalism." This constraint on the powers of the monarch were
significant in making the "[r]ule of law, religious tolerance and
limited constitutional government... the norm in Poland in times when
the rest of Europe was being devastated by religious hatred and
despotism."
Prescriptive
The Constitution of May 3, 1791, which historian Norman Davies calls "the first constitution of its kind in Europe",
was in effect for only a year. It was designed to redress longstanding
political defects of the Polish–Lithuanian Commonwealth and its
traditional system of "Golden Liberty". The Constitution introduced
political equality between townspeople and nobility (szlachta) and placed the peasants under the protection of the government, thus mitigating the worst abuses of serfdom.
Dominican Republic
After the democratically elected government of president Juan Bosch in the Dominican Republic
was deposed, the Constitutionalist movement was born in the country. As
opposed to said movement, the Anti-constitutionalist movement was also
born. Bosch had to depart to Puerto Rico
after he was deposed. His first leader was Colonel Rafael Tomás
Fernández Domínguez, and he wanted Bosch to come back to power once
again. Colonel Fernández Domínguez was exiled to Puerto Rico where Bosch
was. The Constitutionalists had a new leader: Colonel Francisco Alberto Caamaño Deñó.
Islamic states
The scope and limits of constitutionalism in Muslim countries
have attracted growing interest in recent years. Authors such as Ann E.
Mayer define Islamic constitutionalism as "constitutionalism that is in
some form based on Islamic principles, as opposed to constitutionalism
that has developed in countries that happen to be Muslim but that has
not been informed by distinctively Islamic principles".
However, the concrete meaning of the notion remains contested among
Muslim as well as Western scholars. Influential thinkers like Mohammad Hashim Kamali and Khaled Abou El Fadl, but also younger ones like Asifa Quraishi and Nadirsyah Hosen combine classic Islamic law with modern constitutionalism. The constitutional changes initiated by the Arab Spring movement have already brought into reality many new hybrid models of Islamic constitutionalism.
.jpg)
.jpg)
