Unit 9 Flashcards
Constitutional rights
What are the implications of characterising constitutional rights as rules or principles?
Conceptualising constitutional rights as rules aligns with the rights as trumps approach. These rights need clear boundaries to establish what is permissible and what is prohibited, defining the clear scope of rights protection. Within the defined boundaries rights have absolute protection over government infringement. Categorisation is the key practice of judges, who through adjudication define precise boundaries of each right.
Constitutional rights can be viewed as principles. In this approach constitutional rights are not absolute and can be balanced with competing interests. Right can be limited in certain circumstances if justified in specified procedure. This analysis typically involves assessing the formal legitimacy, suitability, necessity, and overall proportionality of the limiting measure. This conception can lead to an indirect horizontal effect of constitutional rights. This means that while rights are primarily conceived as protections against government encroachment, they can also influence the interpretation of private law and shape the relationships between individuals.
Is there a common conception of constitutional rights? Can they be limited? Under what conditions?
No there is not a common conception, however there are two main ones: rights as trumps and rights as principles.
Rights are trumps were developed by legal philosopher Ronald Dworkin and this view on individual rights is used mainly in the USA. These rights are absolute and cannot be anyhow limited by the government. When there is legislation and right in conflict, right always prevails. In this conception it is really important to clearly specify the boundaries of the right, because this sphere is then protected. These boundaries are defined by adjudicators through constitutional interpretation.
The second conception is rights as principles, which is mainly supported by R. Alexy. Individual rights are relative claims against government infringement. Constitutional rights can be limited even externally, but only in special and clearly specified circumstances. So-called legislative reserve means, that indiviudal rights can only be limited by legislative acts (the highest source of law under constitution).
How can the scope of constitutional rights be conceived? Are private actors bound? What is the ‘indirect horizontal effect’ of constitutional rights?
There are two extreme conceptions of scope of constitutional right and then intermediate option used by most of the constitutional systems.
Vertical effect of constitutional rights means that these rights can only be claimed in a dispute between individual and government. These rights cannot be claimed against another individual.
Horizontal effect on the other hand means that constitutional rights can be invoked in ordinary cases between 2 private individuals.
The middle ground between these two extremes in indirect horizontal effect which means that constitutional rights indirectly govern relationships between individuals. That indirect effect is because the norms governing private relationships are created and then interpreted in the light of the constitutional rights.
What are negative and positive constitutional rights? Is this convincing distinction?
Negative rights are defensive rights. They impose an obligation on the government to refrain from interfering with an individual’s actions and freedoms. Focused on liberty and freedom. These are for example freedom of speech, right to privacy, freedom of religion.
Positive rights are entitlements. They require state to take active steps to ensure or provide certain benefits. These rights demand legislation and resources from the government.
Constitutions tend to prioritise negative rights over positive ones, because positive need resources that are not always available, therefore they are not seen as actual rights, rather as benefits.
However the distinction is not completely convincing because there are positive rights that don’t need the implementation or action by state and conversely there are negative rights that implicitly requires state resource.
Define categorisation and proportionality and describe their original historical and theoretical background.
Categorisation is the process of defining the internal boundaries of a constitutional right. This step is necessary for both individual rights as trumps and rights as principles. In. countries where the conception of rights as trump prevails this is the only step in constitutional adjudication. Judges need to decide whether the legislation in questions interferes with the sphere of protection of the constitutional rights and if it does, than the legislation needs to be invalidated since rights always prevail.
In countries where rights as principles applies categorisation is only the first step in constitutional adjudication. Judge first needs to affirm that there was an encroachment of a constitutional rights. If this affirmation is positive then the proportionality test continues. These are 3 questions which answered positively, they justify the encroachment of the legislation on the individual right. First formal legitimacy needs to be answered, that means whether the goal pursued by the legislation at issue is legitimate and sufficiently important. Than there’s the suitability test, which determines whether the measures used in the legislation to achieve a pursued goal are suitable to actually achieve it. And the last step is the necessity test which determines whether the measures used by the legislation are the least restrictive on the constitutional right. Then there is optional fourth step using cost-benefit analysis, it tries to determine whether the benefits accumulating from the measure can justify the restriction.
Illustrate the structural differences between categorisation and proportionality by referring to Griswold v. Connecticut and Multani.
Griswold v. Connecticut is an US case, therefore judged in the light of of rights as trumps, on the other hand Multani is a Canadian case judged in light of rights as principles.
In Griswold v. Connecticut court recognised right to privacy even though it is not an explicitly enumerated right. In the light of this newly-defined rights the court than stroke down Connecticuts legislation prohibiting the usage of contraceptives, because it violates the right to privacy. In the judgement Justice Douglas only had to prove that there was a right to breach, once that was proved no further justification for striking down the legislation were necessary.
In Multani case it was rather clear that the school board with its measures restricted Multani’s right to religion. But court had to look into the purpose and suitability of the measure the school board proposed. Eventually it found that measures with lower restrictions better suit reasonable accommodation of Multani’s right to religion and safe space in schools.
Illustrate the structure and operation of proportionality review with a view to Multani. Compared with categorisation, is it more or less exposed to charges of politicisation?
Multani is a case decided by the Canadian Supreme Court in 2006. Young orthodox Sikh Multani wore his kirpan (religious dagger) to school. However the school board was worried about the school safety since he has a weapon with him easily accessible, Therefore it came up with a measure, that could accommodate Multani’s religion and safety in school. This measure wanted for Multani to wear a kirpan made out of harmless material, however this was not acceptable to Sikhs orthodox teaching.
After determining that an individual right was breached by prohibiting Multani to have with him his kirpan a proportionality test was done to determine whether the “symbolic kirpan” can be justified to limit that individual right.
The first step examined whether the objective pursued by the limitation of the right is sufficiently important and justify the restriction of the right in question. School safety was recognised as a legitimate goal.
Second steps examines whether the measures chosen to limit the right are rationally connected with reaching the goal. The complete ban of kirpan in school indeed reaches the goal of school safety.
Third steps assessed whether the measure on the right is the least restrictive mean to achieve the goal. In this case the court found that other options would result in lower restriction.
The fourth step involves weighting the benefits of the limitation against its cost (also called proportionality stricto sensu). The court found that what we gain in terms of safety when kirpan are completely banned does not outweigh the cost of the measure it has on Multani’s freedom.
Mainly the last step in proportionality test can raise concerns of politicisation. Weighting two conflicting interests can inevitably lead to a degree of subjectivity. Furthermore balancing individual right with societal benefits shifts focus from the absolute protection of right to more utilitarian calculation. This approach can undermine core purpose of constitutional review as safeguards against majoritarian overreach. Striking balance between competing rights and interests often involves considerations that are traditionally within the realm of elected legislatures.
How is freedom of speech given effect in Lüth? What manifestation of horizontal effect does it instantiate?
In Lüth, the Court addressed a conflict between the freedom of speech of Erich Lüth, who called for a boycott of a film directed by a former Nazi propagandist, and the economic interests of the film’s producer, who sought an injunction to stop the boycott. The Court ultimately sided with Lüth, finding that his freedom of speech, guaranteed by Article 5 of the German Basic Law, prevailed over the producer’s economic interests.
The Court distinguished between speech that contributes to public discourse and speech that serves primarily private interests. Lüth’s call for a boycott, aimed at raising awareness about the director’s Nazi past and its implications for postwar Germany, was deemed to be of significant public concern. In contrast, the producer’s interest in protecting his film’s commercial success was seen as a predominantly private concern. The Court implicitly recognised a hierarchy within the protection of freedom of speech, affording greater protection to speech that engages with matters of public interest. This approach recognises that the free exchange of ideas and opinions on matters of social and political significance is essential for a functioning democracy.
The Court emphasised that the Basic Law is not a neutral document but embodies fundamental values that should shape the interpretation of all laws. This view, known as the radiating effect of constitutional principles, recognises the influence of constitutional rights on the entire legal system, including private law.
The Court’s decision in Lüth demonstrates the concept of indirect horizontal effect. Rather than directly applying Article 5 of the Basic Law to the dispute between Lüth and the producer, the Court used it to interpret a provision in the German Civil Code (BGB), specifically Section 826, which provides a remedy against a person who intentionally causes injury to another in a manner contrary to “good morals.” The Court acknowledged that freedom of speech is not absolute and may be limited by other legitimate interests, such as the protection of reputation. However, in this case, the Court found that Lüth’s right to express his opinion on a matter of public concern outweighed the producer’s interest in preventing potential economic harm. By interpreting Section 826 of the BGB through the lens of Article 5, the Court effectively gave effect to the freedom of speech in a private dispute. The injunction against Lüth was lifted, not because it directly violated his constitutional right, but because it was deemed incompatible with the broader constitutional principles of free speech as applied to private law relationships.
