CONSTITUTIONS, OPENNESS AND COMPARATIVE LAW^[*]

Constituciones, apertura y Derecho comparado

Giuseppe Martinico[1]

Associate Professor of Comparative Public Law
Scuola Universitaria Superiore Sant’Anna, Pisa

http://dx.doi.org/10.18543/ed-67(1)-2019pp111-124

Recibido: 11.05.2019
Aceptado: 21.06.2019

Abstract

Openness and resistance are essential keywords to understand the essence of the so-called post-totalitarian constitutionalism. Indeed, according to Carrozza, there are three critical points that marked the evolution of Western constitutionalism. First, the distinction between constituent power and constituted power; second, the notion of the constitution as “higher law”, which ushers in the possibility of the judicial review of legislation; third, the tension between universal aspirations and national/territorial identities. This article will deal with constitutional openness understood as one of the pillars of post-totalitarian constitutionalism.

Keywords

Constitutional Law; openness; comparative law.

Resumen

La apertura y la resistencia son palabras clave esenciales para comprender la esencia del llamado constitucionalismo post-totalitario. De hecho, según Carrozza, hay tres puntos críticos que marcaron la evolución del constitucionalismo occidental. Primero, la distinción entre poder constituyente y poder constituido; segundo, la noción de la constitución como «ley superior», que abre la posibilidad de una revisión judicial de la legislación; tercero, la tensión entre las aspiraciones universales y las identidades nacionales / territoriales. Este artículo tratará sobre la apertura constitucional entendida como uno de los pilares del constitucionalismo post-totalitario.

Palabras clave

Derecho constitucional; apertura; Derecho comparado.

Sumario: I. Introduction: Openness and Post-Totalitarian Constitutionalism. II. The concept of openness adopted in this essay and some of its manifestations in comparative constitutional law. III. Internationalisation of constitutions and openness. IV. Value-based openness and modern constitutions.

I. INTRODUCTION: OPENNESS AND POST-TOTALITARIAN CONSTITUTIONALISM

Paolo Carrozza’s reflections on Kelsen’s work and his never-ending influence over the community of constitutional lawyers[2] are a piece of a broader puzzle. Carrozza’s article is but a segment of a long thread of works in which he has dealt with the interaction between national (constitutional) and supranational/international legal systems, especially after WWII. Openness and resistance are essential keywords to understand the essence of the so-called post-totalitarian constitutionalism. Indeed, according to Carrozza, there are three critical points that marked the evolution of Western constitutionalism. First, the distinction between constituent power and constituted power; second, the notion of the constitution as “higher law”, which ushers in the possibility of the judicial review of legislation; third, the tension between universal aspirations (redolent of the Enlightenment’s rationalism) and national/territorial identities. Building on these three central pillars, Carrozza introduced what he termed the “openness” of Western constitutions (especially in Europe):

“This new ‘openness’ in Western, and in particular European constitutionalism, is well described by Zagrebelsky. For him, the mildness and softness of the constitution is explicable in terms of its determination to express the aspiration of living together – to arrange the cohabitation of principles and values, which, if conceived in an absolutist way, would be irreconcilable. In order to lend concreteness to these sentiments, we must re-introduce two distinctions that twentieth-century Western constitutionalism sought to elide: the separation between the law meant as the narrow legal rule ‘posited’ by the legislator and human rights as inherent in individuals – and the separation between the law and justice, the latter conceived of as an aspiration based on the reconciliation of deep principles of political morality. The ‘openness’ in post-modern constitutionalism may be intended, according to Spadaro, as precisely the re-awakening and re-sensitization of the legal/political system to a superior human aspiration to justice, one that challenges the closure of a positivist legal/political system in which justice is reduced to formal legality. Not relativism, but reasonableness and proportionality, is the leitmotif of post-modern constitutionalism”.[3]

Openness, in this essay, indicates a constitutionally-sanctioned responsiveness of the national system towards external legal sources. In other words, the legal order is not tightly isolated from the norms that are not produced by the law-making actors empowered by the constitution (which, accordingly, come with the seal of democratic legitimacy).

The Italian constitution belongs to a group of constitutions that Mortati called “constitutions born from the Resistance”.[4] These constitutional documents were designed with a clear intent to reject and bypass all the “values” (or anti-values) that had characterised the totalitarian era. In this group of “constitutions born from the Resistance”, Mortati also included other specimens, like the French constitution (IV Republic) and the German one. As Carrozza[5] pointed out, there are some possible additions to this group, most notably the Portuguese, Spanish and Greek constitutions drafted in the 1970s.

This value-laden aspect is peculiar to many constitutions that emerged from the Resistance. They resulted from a political compromise among very different democratic forces. These forces had, as their only point in common, the rejection of totalitarianism. Some of these constitutions (including the Italian one) advocate the need for new societal models and abound in declarations of principle, reflecting the wish to break with the past. In some cases, these so-called “promised revolutions[6]” have remained solely on paper. One of the prominent members of the Italian Constituent Assembly, Piero Calamandrei, bitterly acknowledged as much with regard to many provisions of the Italian constitution, a few years after it came into force.[7]

The programmatic character of these documents did not just point to new ways of shaping the values and premises of the social life within the national boundaries. The original drafters of these constitutions born from the Resistance proposed the codification of values that should inspire the life and contribution of their nations to the international community. In this latter sense, these constitutions displayed a feature of outward-looking openness.

II. THE CONCEPT OF OPENNESS ADOPTED IN THIS ESSAY AND SOME OF ITS MANIFESTATIONS IN COMPARATIVE CONSTITUTIONAL LAW

As mentioned earlier, openness is one of the distinctive traits of these constitutions. It is possible to find the seeds of this constitutional stance even earlier, looking back at the process that, in the thirties, Mirkine-Guetzévitch called the “internationalization of modern constitutions”.[8] In other words, openness apparently belongs to the core of the “nouvelles tendances du droit constitutionnel” that emerged in the inter-war period.[9] Something similar might be argued with regard to the connection between flexibility (in this context understood as ability to adapt) and constitutionalism. This connection has been explored in the literature, with specific attention to what scholars term “evolutionary constitutionalism”.[10]

Constitutional openness might present itself in different forms. Constitutions can signal a system’s permeability to general international law only (customary international law and general principles), or also to treaty law. Among the constitutions that open up to treaty law, some treat human rights treaties with special regard, due to the subject-matter affinity between the constitutional and international documents. The constitutions of Spain and Portugal, as explained below, are good examples.

This kind of openness, well-researched in the literature,[11] can perform two constitutionally relevant functions. On the one hand, it may lock-in the original pact codified in the constitution, referring to an external constraint to guarantee the rights enshrined in the Verfassung. The Dutch case is emblematic from this perspective. In the Netherlands, the constitutional reform of 1953 introduced, among other things, Article 94[12] of the Grondwet, which empowers national judges to disapply national law in conflict with international treaties, primarily the European Convention of Human Rights. This is the process described above as “lock-in,” buttressing constitutional rights through external legal instruments. On the other hand, constitutional openness can also perform a transformative function, injecting new blood into the constitutional text. For instance, reference or openness to human rights treaties entail an automatic updating of the list of rights included in a constitutional text, dictated by the potential evolution of the international source, and make the domestic source more adaptive to the new needs of the society. Again, the Dutch example is crucial and the openness of the Grondwet has been cited as reason why amendments to its first part are ultimately unnecessary.[13]

The elasticity (or porousness) of the original text knows some limitations, of course. Many of these constitutions contain a group of core principles that cannot yield to external pressure. A breach of these principles would be tantamount to misplacing the axiological foundations of their legal orders. At the national level, constitutional law scholars describe this set of principles in different ways, e.g., the “Republican form” (“forma repubblicana”[14]) in Italy and the eternity clause (“Ewigkeitsklause”[15]) in Germany.[16]

The degree of openness of a constitutional document does not flow only from its provisions on the domestic effects of external laws, but also from its rules on participation in the international community. These latter norms reflect an axiological continuity between the principles and values that govern the life of a national polity and those that characterise the international community. In other words, “open” constitutions have never accepted that the promotion of their fundamental values stop at their borders. In fact, even when the constitutional provisions expressly refer to “citizens”, the constitutional courts have frequently extended the effects of these norms to non-citizens, most often in the field of fundamental rights protection.[17] Open constitutions seek to govern the activity of domestic actors even beyond the national territory, promoting the national values in the post-national field. In this context, the Italian example is symptomatic of a broader trend.[18]

Nowadays, because of their constitutional openness, national constitutions do not provide an exhaustive list of fundamental rights. According to Saiz Arnaiz,[19] this textual deficiency motivates the reference to international and supranational law, to ensure the protection of certain constitutional goods. For instance, in Italy, it was thought that the general clause of protection of fundamental rights of Article 2 of the Constitution is an “open” norm.[20] This reading of Article 2 has allowed the Constitutional Court to recognize and guarantee new and “third generation” rights (the right of privacy, the right to a healthy environment, the right to participation in cultural heritage) and keep the Constitution up-to-date with respect to evolving principle of individual protection (“principio personalista”).

III.  INTERNATIONALISATION OF CONSTITUTIONS AND OPENNESS

In the 1990s, commenting upon some provisions of the constitutions of Central-Eastern European countries, Eric Stein noted “paradigm of progressive internationalization of constitutions”.[21] That trend participated in a broader pattern of constituent processes influenced in part or in whole by the international community,[22] which lie at the origin of what Cope now terms “intermestic constitutionalism”[23].

The case of the Central-Eastern European constitutions and the cases of the German and Italian constitutions share the same attitude of openness, as recalled, among others, by Cassese and Stein.[24] Within this trend of internalisation of modern constitutions, the case of the Republic of Weimar represented a starting point. The Preamble of the Weimar constitution makes it clear that its origins lie in the atrocities of World War I: (“The German people, united in its tribes and inspirited with the will to renew and strengthen its Reich in liberty and justice, to serve peace inward and outward and to promote social progress, has adapted this constitution”), and so did Article 227 of the Treaty of Versailles, the wording of which spoke of “a supreme offence against international morality and the sanctity of treaties”.[25]

This combination of factors generated a series of norms designed to attract into the constitutional discipline both the internal and external dimensions. On the one hand, Article 4 of the Weimar constitution acknowledged that “the generally recognised rules of international law are valid as binding elements of German Reich law”. Another relevant provision is Article 162, which states that “the Reich advocates an international regulation of the rights of the workers, which strives to safeguard a minimum of social rights for humanity’s working class”.

Provision such as Article 162 are based on the attempt to create a parallelism of values between the domestic and international spheres: “the Reich advocates an international regulation of the rights of the workers, which strives to safeguard a minimum of social rights for humanity’s working class”. Another important novelty, that inspired the Spanish constitution of 1931, was the progressive involvement of the parliament in the foreign affairs.[26]

Indeed, the Spanish constitution of 1931 contained a number of interesting provisions, starting with Article 7 (“The Spanish State shall abide by the universal norms of international law, including them in its positive law”[27]). Above all, of note is Article 65, which considered “all international conventions ratified by Spain and registered in the League of Nations and in the nature of international law” as “a constitutive part of Spanish legislation”. This way, the Spanish constitution created a clear obligation for the national legislature to act in compliance with international law. This arrangement resulted, as Cassese stressed,[28] in transforming a possible violation of international law into a breach of the constitution (a constitution guaranteed by the establishment of a constitutional court, the “Tribunal de Garantías Constitucionales”).

Finally, certain other provisions accorded an important series of competences to the Spanish parliament in the field of foreign affairs (e.g., authorization to the ratification of international treaties, declaration of war[29]). Another example of the external openness of the modern constitutions is obviously visible in the German Basic law. Its preamble starts by acknowledging the responsibility of the German people “before God and man” and affirming “the determination to promote world peace as an equal partner in a united Europe”.[30] Article 25 recognizes the primacy and precedence of the general rules of international law over the national norms. Also in the practice, thanks to techniques like the famous “Völkerrechtsfreundliche Auslegung”[31] the German legal system has shown to be very open to the influence of international law.

A third wave of constitutional internationalisation is championed by the Spanish and Portuguese constitutions. These constitutions introduced a fundamental distinction between the general category of international treaties and that particular group of international treaties devoted to human rights protection. As for Portugal, the fundamental provision is Article 16 of the constitution,[32] which recognizes that international human rights treaties have a complementary role to the Constitution. This provision accords an interpretative role to the Universal Declaration of Human Rights, seemingly excluding other conventions like the European Convention of Human Rights, but the Portuguese Constitutional Court often used the ECHR as an important auxiliary hermeneutic tool for interpreting the Constitution, leaving the matter unresolved.[33] A similar provision is Article 20, paragraph 1 of the Romanian Constitution: “Constitutional provisions concerning the citizens’ rights and liberties shall be interpreted and enforced in conformity with the Universal Declaration of Human Rights, with the covenants and other treaties Romania is a party to”.

Finally, the most important confirmation of human rights treaties’ special ranking in Spain is Article 10.2,[34] acknowledging that these treaties provide interpretive guidance in the application of human rights-related constitutional clauses (even if the Constitutional Court specified that this does not implicate that human rights treaties have a constitutional status[35]). An example particularly interesting to study constitutional openness to international human rights treaties is the Czech case. Before the Czech Euro amendment, Articles 10 and 87 of the Constitution[36] distinguished between international treaties in general and international human rights treaties, affording the latter with supra-statutory rank, without clarifying whether international human rights treaties belonged to the constitutional block. At the same time. Article 87, para. 1[37] of the constitution empowered the constitutional court to declare the unconstitutionality of laws conflicting with international human rights treaties. After the Czech Euro amendment,[38] the new Article 10 of the constitution abandoned such a distinction and now grants all international treaties a super-statutory but still sub-constitutional rank[39], at least, from a formal point of view. The Czech constitutional court adopts a very broad reading of the European Convention of Human Rights and considers it, alongside other human rights treaties, superior to other international treaties[40].

In fact, the Czech constitutional read the new constitutional provisions creatively, de facto rewriting them. It has arrogated for itself the power to review the validity of national legislation in light of the ECHR,[41] in spite of the new text of the Constitution. In 2002, the Czech constitutional court said that: “[t]he inadmissibility of changing the substantive requirements of a democratic state based on the rule of law also contains an instruction to the [CCC], that no amendment to the Constitution can be interpreted in such a way that it would result in limiting an already achieved procedural level of protection for fundamental rights and freedoms”.[42] By dint of this reasoning, therefore, the constitutional court concluded that “the international human rights treaties have retained their constitutional status”.[43]

IV.  VALUE-BASED OPENNESS AND MODERN CONSTITUTIONS

The pattern of constitutional openness described by Cassese produced revolutionary effects, especially in re-defining the function of the general principles in these domestic orders.

In comparative law, the idea of general principles is frequently associated with that of openness, since general principles are “open” norms in at least three senses. First, principles feature what Betti called a “surplus of axiological meaning” (“eccedenza di contenuto assiologico”).[44] That is, compared to other norms principles have a markedly “expansive power” (“vis espansiva”) and indefinite content. Second, principles are also open since they often act as a bridge between two different normative systems (e.g., law and morality), connecting positive law and natural law.[45] Third, principles serve an opening function when they connect the domestic and international legal systems, a function that emerged starkly after World War II. However, if general principles have been traditionally connected with the idea of openness, comparative law shows that this has not always been the case.[46] The debate on codification in continental Europe clearly shows that, for a certain period, general principles were associated with the necessary closure of a legal system, especially in those systems where the civil codes were considered an expression of legal nationalism.[47] The debate on the general principles of law in the Italian Civil Code (dated 1942 and drafted under the fascist regime) is emblematic from this point of view.[48]

Article 12 of the preliminary provisions to the Italian Civil Code (listing the criteria for legal interpretation) was drafted precisely to prevent recourse to the principles of natural law.[49] About this provision, Guastini argued that, originally, systematic interpretation played a marginal role.[50] Therefore, systematic interpretation was considered an option of last resort, exploitable only in exceptional cases. Scholars also noted that, according to the original scheme of the Italian Civil Code, systematic interpretation was an act of integration rather than interpretation strictly understood.[51] After the entry into force of the Italian Constitution, many of the provisions of the same Civil Code (including Article 12 of its preliminary provisions) were constructed in light of the new constitutional principles; this new arrangement changed the function of the general principles within the legal order.[52] Previously serving as “lids” closing up a legal system (no reference outside the Code was allowed, not even to natural law), principles then became engines of openness, connecting domestic and international law. Systematic interpretation (often combined with consistent interpretation[53]) is no longer considered an option of last resort for the interpreter. In this light, constitutionalism has favoured the emergence of a kind of “osmotic law”[54] or, as I have tried to explain elsewhere, “complex” law (because it is based on a constitutional synallagma[55]). How is this possible, and how is this related to that openness (or opening[56]) described by Carrozza?

A possible explanation flows from the axiological continuity that exists – or should exist – between the domestic and the international levels, and the efforts made to construct a better society, even at the international level. The opening of the legal order to its surrounding laws, and the converse attempt to project its founding principles outwards characterize the current contingency of coexistence of different (but intertwined) legal orders.