Thursday, February 4, 2016

From Common Constitutional Core to Dialogue Among Courts

We are happy to publish this guest post from Associate Professor Quirino Camerlengo, University of Pavia (Italy), Department of Management and Business (PhD in Constitutional Law) who previously served as a Law Clerk in Italy's Constitutional Court.

The Dialogue Among Courts

Dialogue among courts consists of comparing the interpretations of law. The Courts conduct this dialogue through mutual citation. Written constitutions give the interpreter a wide range of possible options as regards the meaning to give to individual rules while keeping the limitations imposed by the original intent of their creators. Elements taken from the jurisprudential experience of other states can be used when interpreting a constitution.

In the context of fundamental rights, the factors determining change in the interpretation differ in consistency from one state to another. Moreover, some states may promote their more far-reaching interpretative evolutions as suitable for other states to imitate. Consequently, comparison with the laws of other states can give courts innovative elements to use in the interpretation of domestic law, beginning with constitutional interpretation.

Successful dialogue depends on the willingness of domestic courts to compare their interpretations with those of other states.

The experience of the United States confirms the consistency of the resistance towards inter-court dialogue (Jackson 2005, p. 109). Reluctance to drawing comparisons is widespread, as summed up by Justice Scalia (in Printz v. United States, 521 U.S. 898, 1997) who said: “we think such comparative analysis inappropriate to the task of interpreting a Constitution, though it was of course quite relevant to the task of writing one”.


The Thesis

I will try to show that:

  1. a reasonable uniform level of protection for fundamental rights can be reached tank to dialogue among national judiciaries;
  2. the dialogue among courts is the consequence of the presence of an essential constitutional common core (an ensemble of common fundamental principles belonging to the constitutional systems of western countries);
  3. the principles belonging to the constitutional common core can be identified by considering the expectations of rights protection on the part of specific actors within the state, in this case, foreign guest workers;
  4. the rules born of this inter-court dialogue flow into a cosmopolitan constitutional law, according to the Kantian theory of the Weltbürgerrecht.

Western constitutionalism and common constitutional roots

To find a reasonable balance in the levels of safeguard of fundamental rights, particularly among western states, dialogue among foreign courts can develop hand in hand with the awareness that the constitutional system is not the exclusive product of the tradition of a determinate people, but is based on, and continually nourished by, a shared heritage of fundamental principles.

David Beatty wrote: “the basic principles of constitutional law are essentially the same around the world, even though there is considerable variation in what guarantees constitutions contain and in the language that they employ” (Beatty 1995, p. 10).

The sharing of common roots is inherent to the concept of western constitutionalism, it being a current of thought that has extolled the role of the constitution as a defensive bulwark of fundamental rights. The assertion of constitutionalism has gradually brought states closer together, reducing the differences in legal traditions that were previously thought to be insurmountable. Constitutionalism has promoted reciprocal interaction among legal traditions, which has affected the very concept of law.

The dialogue achieved with a reasonable use of comparison can encourage states to look for the most suitable solutions for safeguarding fundamental rights.

Nevertheless, the identification of shared fundamental principles is harder than it looks.

Two obstacles make it difficult to reconstruct the common heritage of fundamental constitutional principles:

  1. the constitutions tend to change over time, though marginally and very slowly, which throws into question the stability of the common heritage as a factor of cohesion among states;
  2. the constitutions tend to be self-referring.

To address these obstacles:

  1. it should be assumed that every constitution is born and develops from a stable and intangible essential core;
  2. to identify the fundamental principles of the common heritage, a foreign element must be injected into the constitutional systems in order to verify whether these principles are able to guarantee an adequate level of safeguard for fundamental rights. This foreign element makes it possible to make the comparisons required to identify the limits and shortcomings of constitutional systems.

The essential constitutional core

The constitutional system is the organic combination of heterogeneous elements, whose cohesion is intended to interactive achievement of certain aims.

The comparison between systems is a comparison of the key elements that determine the essence of every system.

The basic elements are the core of the system. Each complex entity develops starting from a limited set of constitutive factors which define its main features, essentially as regards identity (structural dimension) and its concrete capacity of affecting existing entities (functional dimension).

The essential core incorporates fundamental constitutional principles that guarantee the stability of the state: their elimination would cause a radical transformation of the state itself.

These principles are the basic principles identified through a consideration of their position in the constitution and in constitutional jurisprudence, without forgetting the historical, cultural, and political traditions of the country itself.

This lowest common denominator is precisely the theorized essential constitutional core.

These principles reflect the fundamental aims of the constitutional system. Constitutions embody “deeper imperatives that continue to shape their struggle for power and legitimacy” (Ackerman 1998, p. 384). These ‘deeper imperatives’, such as the separation of powers or judicial review of legislation, are principles that have not been invented ex novo by a state, but rather are the common heritage of western countries linked to the English tradition.

But how does one identify the characteristics of this essential core?

It should be considered that the constitutional system:

- is formed starting from a small number of constitutive elements expressing its embryonic condition (birth);

- it is a compact body of elements with specific characteristics derived from its genetic matrix (identity);

- it survives thanks to the indissoluble cohesion and stability of its constitutive elements which assure a permanently balanced structure (existence);

- it evolves by following the development trajectories traced by its original elements (development).

Therefore, the essential core is:

α. necessary: the constitution is derived from the core. The other elements aggregate around the core to form the system;

β. substantial: the essential core gives the system its specific identity as a complex of peculiar characteristics which define its original physiognomy. The essential core incorporates the ‘genetic code’ of the system;

γ. indivisible: the elements incorporated in the core cannot be separated;

δ. dynamic: the core guarantees and guides the evolution of the constitutional system.        

Every western constitutional system has an essential core incorporating its fundamental principles. It is the interaction of these principles, in turn, that satisfies the characteristics of the essential core: thanks to this interaction, these principles really are fundamental.

Now, the common constitutional heritage of western states must be reconstructed by interrogating the essential ‘cause’ of the various constitutional systems. In other words, the principles incorporated into the common essential constitutional core must be selected.

The identification of the fundamental principles in the common essential core began with article 16 of the Déclaration des Droits de l’Homme et du Citoyen of 1789, considered by many to be the epitome of constitutionalism: “toute société dans laquelle la garantie des droits n’est pas assurée, ni la séparation des pouvoirs déterminée, n’a point de constitution”.

Comparing the constitutional systems of western states and using the abovementioned selection criteria, it can be demonstrated that the common essential core includes the following fundamental principles:

  • safeguard of fundamental rights and the rule of law;
  • equal protection of the laws;
  • separation of powers;
  • democracy;
  • pluralism;
  • supremacy of the constitution.

The safeguard of fundamental rights is the typical aim of constitutions. In turn, the safeguard of fundamental rights trusts in the rule of law institutions. Without equal protection of the laws it’s not possible to imagine a fair and strong safeguard of fundamental rights. Every unjustified discrimination is a menace to fundamental rights. The separation of powers is the solution best suited to the protection of fundamental rights. The absence of checks and balances would make it the only power to be absolute arbitrator for the destiny of basic rights (Ackermann 2000). Democracy is the principle best able to guarantee the fundamental rights in a State governed by the rule of law and by the separation of power. In a constitutional system orientated towards freedom, the safeguard of rights presupposes that their limitations are decided in ways that there is a virtual identification between the holders of power and those who are the object of the rules (political representation). Pluralism aids democracy. There can be no democracy without pluralism. In fact, pluralism means the recognition of the many social and political realities of the State. Finally, the supremacy of the constitution is the basic condition that they be guaranteed fundamental rights. Chief Justice Marshall had guessed right when he said that “the constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it” (Marbury v. Madison, 5 U.S. (1 Cr.) 137, 1803).

The “foreign element”

A constitutional system is not ideal if an appreciable level of protection for fundamental rights has not yet been realized. Indeed, a constitutional system is inefficient if it does not draw upon the arrangement of the fundamental principles belonging to the constitutional essential core.

To test the realization of this condition, it is not correct to use the internal standards of a country. In this context, a state is introvert if it does not accept comparison with other states for the purpose of assessing its level of rights-protecting juridical culture.

An introvert state measures its degree of maturation by exclusive use of reference parameters taken from its own history. The ‘introverted’ nature of the United States, despite enjoying the reputation of providing a broad scope for the protection of fundamental rights, sometimes makes it difficult for the comparison among the standards of safeguard reached by other countries.

Dialogue among courts is the antidote to this introverted nature: “the uses of external norms may mark a radical and deliberate departure from parochial practice […] or they may signal little more than a serendipity not soon to be reparted” (Amann 2004, pp. 597-598).

To provide an external standard, a citizen from another state might provide the external means for comparing systems.

The admission of this element is due to the entrance of citizens from other states: individuals with expectations regarding minimum threshold standards regarding the protection of their fundamental rights. Guest citizens abandon their countries in the hope of improving their starting conditions of life. Consequently, states will be more willing to accept new individuals, and, therefore, the level of conflict will decrease.

International networks of legal practitioners or labor activists are a precious source of transmission of knowledge of alternative interpretations. Legal organizations propagandize to prod transformations in legislation and jurisprudence (law-in-progress). The foreign guest worker, on the other hand, starts legal proceedings in which the law is interpreted and applied in concrete cases (law–in-action).

The main challenge for foreign guest workers initiating court action to secure rights protection is to obtain recognition of fundamental rights when the relevant written constitution refers to citizens only. In such a case, the use of the principle of equal protection of the laws could cause the extension of fundamental rights protection to foreign guest workers.

Just think of the decisions of the United States Supreme Court in the context of Guantanamo Bay, in which the fundamental right of habeas corpus (above all the suspension clause) was recognized as applying to foreign prisoners, even if enemy combatants (Rasul v. Bush, 542 U.S. 466, 2004; Hamdan v. Rumsfeld, 542 U.S. 507, 2006; Boumediene v. Bush, 553 U.S. 723, 2008).

After obtaining recognition as a subject having access to a state’s constitutional mechanisms of fundamental rights protection, the foreign guest worker could plan his judicial defense with reference to interpretations of common constitutional principles such as personal freedom, and the freedoms of religion, association, assembly, and thought, that originate in the jurisprudence of her own (rather than the host) country.

In this way, inter-court dialogue can achieve a healthy evolution of mechanisms for rights protection, regardless of the citizenship of the parties.

In considering the position of guest citizens when selecting the principles of the common essential core, the result will be the identification of the principles belonging to the constitutional common core:

  1. to make tendentiously and reasonably uniform the standards of defence concerning the protection of fundamental rights;
  2. by placing stress on the individual owner of these rights;
  3. as a consequence of the comparison between the constitutional cores of different countries.

The arrangement of the principles belonging to the constitutional common core must satisfy the requirements of the essential core mentioned above: necessity, substantialness; indivisibility; dynamism.

Towards a cosmopolitan constitutional law

Dialogue among courts has been often discussed in recent studies of comparative law (L’Heureux-Dubé 1998; Slaughter 2003; Berman 2004; Hirschl 2004; Markesinis and Fedtke 2006).

The basis of dialogue among courts is the core of constitutional principles common to western constitutional systems. So, this dialogue is not a cultural process; rather, it is a legal process based on respect for fundamental constitutional principles.

Western countries share the same fundamental constitutional principles. Constitutional systems aim to protect fundamental rights and constitutional principles provide solutions to questions related to the safeguard of fundamental rights. As these principles can be applied in different ways, the solutions found by a particular national court will not always the best ones. So, the inter-court dialogue helps national courts find the best solution.

The presence of the foreign guest worker provides a useful occasion for the development of inter-court dialogue. He can draw from pertinent arguments to discover a new or better solution deriving from common constitutional law, though the dialogue could develop in spite of the absence of this external element.

The Kantian ius cosmopoliticum is the theoretical frame in which the legal basis of the dialogue among courts can be put (Kant 1795).

Ackerman, B.A. (2000), “The New Separation of Powers,” 113 Harvard Law Review, pp. 633-729.

Amann, D.M. (2004), “‘Raise the Flag and Let it Talk’: On the Use of External Norms in Constitutional Decision Making”, 2 International Journal of Constitutional Law, pp. 597-610.

Beatty, D.M. (1995), Constitutional Law in Theory and in Practice, University of Toronto, Toronto.

Berman, P.S. (2004), “Judges as Cosmopolitan Transnational Actors,” 12 Tulsa Journal of Comparative and International Law, pp. 101-121.

Hirschl, R. (2004), Towards Juristocracy: The Origins and Consequences of New Constitutionalism, Harvard University Press, Cambridge (Mass.).

Jackson, V.C. (2005), “Constitutional Comparisons: Convergence, Resistance, Engagement”, 119 Harvard Law Review, pp. 109-128.

Kant, I. (1795), “Perpetual Peace: A Philosophical Sketch,” in Reiss, H. (ed.). Kant: Political Writings, Cambridge University Press, Cambridge, [1991].

L’Heureux-Dubé, C. (1998), “The Importance of Dialogue: Globalization and the International Impact of the Rehnquist Court”, 34 Tulsa Law Journal, pp. 15-40.

Markesinis, B. – Fedtke, J. (2006), Judicial Recourse to Foreign Law: A New Source of Inspiration?, UCL Press, London.

Slaughter, A.-M. (2003), “A Global Community of Courts”, 44 Harvard International Law Journal, pp. 191-219.


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