RULE OF LAW IN THE DEVELOPMENT OF CONSTITUTIONAL LAW
Abstract
Two major tendencies exist in contemporary law: globalization and constitutionalization.
The worldwide interconnection of politics, economy, security, environmental protection, technology, etc. has contributed to the opening of the sovereign state; the State, formerly closed, is now opened, “open statehood”is its new characteristic quality. Sovereignty has lost its effect of exclusiveness, has been essentially relativized and has nearly abandoned its genuine function. Law must respond to this phenomenon. Important steps have been made to internationalize internal law, in particular constitutional law. A significant example of internationalization is the order of the European Union, which is even of a supranational character. State-like instruments and mechanisms are at the disposal of this multinational union, internal matters are europeanized in a far-reaching degree; this makes manifest the functional transition from the State to a multinational body.
Constitutionalization is a second phenomenon of great importance visible in contemporary law development which has an internal, State-related and an external, international law-related dimension.
The internal dimension of constitutionalization has various aspects:
First of all the term of constitutionalization can be understood in a different way: the strongest form is the creation of a new Constitution itself; less significant but frequently used in many countries is the formal modification of an existing Constitution, the constitutional reform, which regularly requires the fulfilment of specific conditions such as a qualified majority in Parliament and/or a referendum.
Furthermore the most efficient and regularly applied instrument of constitutionalization is constitutional interpretation which adapts the constitutional text to the major social changes with regard to the fact that a constitution is a “living instrument”which endures in time but shall be adequate in any moment so that adaptation by interpretation is indispensable. If this way of adaptation strengthens the constitutional impact of the given text by enriching and intensifying the constitutional concepts it is a form of constitutionalization by interpretation. The same can be said if ordinary law is interpreted “in conformity to the Constitution” which means that the constitutional concepts are expressed and implemented through ordinary legislation. By this the constitutional ideas penetrate into the fields of Parliament-made law and fill them up. Also this process is a process of constitutionalization.
Constitutionalization also goes on in international and supranational law. Significant examples are the creation of unwritten fundamental rights and elements of rule of law by the judges in the legal orders of the European Community and European Union. Such judge-made constitutionalization has been the functional starting point for the emergence of written constitutional texts in these matters.
Also in traditional international law constitutionalizing processes are visible. The evolution of jus cogensas a set of principles which cannot be ruled out by state sovereignty can be categorized as such a process. Human rights, the prohibition of military force, and other principles of primordial importance for the international community are examples for a gradual transformation of the sovereignty-based horizontal coordination system as international law is by origin into a vertical principle-based legal order. Such a transformation goes alongside with constitutionalization.
The strongest form of constitutionalization is the creation of new Constitutions.
In most of the new democracies after the fall of the communist bloc has taken place such a process. This category also includes “total revisions” of existing constitutions as in Switzerland in 1999 (the new Constitution being in force since 2000)7 as well as fundamental revisions of a Constitution, such as in Austria, revisions which have impact on the basic principles of the Constitution in force .
The second aspect of internal constitutionalization is, as already pointed out, not the creation of a new constitution but the reform of the existing constitution (if it does not fall within the category of a total revision) in order to make the constitution more efficient or to add an important issue to the constitutional document. An example could be the introduction of an individual constitutional complaint into the text of the constitution as it has been in Turkey. These reforms have to be realized in accordance to the specific provisions of a constitution.
As it has been mentioned, there is a form of functional constitutionalization by constitutional jurisdiction. The judges’ interpretation of the constitutional text is highly important for the further development of constitutional law. An example can be the German Constitutional Court jurisprudence on personality rights based on the guarantee of dignity of man and the free deployment of personality (articles 2.1 in connection with 1.1 BL). In this context we could also refer to the large body of constitutional law jurisprudence in other European countries.
A further aspect of constitutionalization is the crucial issue on the impact which law and in particular constitutional law has on the society. The idea and the concepts of constitutional law must be internalized by society, which has to identify with the basic constitutional structures and values in the country. Constitutionalization would be purely formal if it is not supported by the individuals. The finality of constitutional law is not only to establish limits of the exercise of public power, but also to give orientations to the public to be followed in their private actions. This corresponds to the fact that all branches of law are constitutionalized that means that they are altogether subject to the constitution which is the “supreme law of the land”.
Society must be aware of the constitutional possibilities, the fundamental rights and the jurisdictional remedies against excessive state intervention the members of the society have. Society has to respect, accept and practice constitutional law so that the supreme values of the legal order are the ideological basis for the society’s activities. Constitutional law initiates an identifying process with the individual and contributes essentially to the integration of the society.
Constitutionalization means to establish the rule of law. The constitution is the main expression of law. To recognize the primacy of the constitution over all other branches of law is a progress in the development of rule of law.
The external dimension of constitutionalization has a twofold meaning: first, it refers to the set of provisions in a constitution which regulate the relation of the State with the international community. In particular, the constitution says how international treaties are introduced into the internal legal order, by reception or by transformation. The modern approach is to apply international treaties as such, directly, by the national institutions, that is to “receive” them within the internal legal order without converting them into internal law. This concept of reception or adoption of international treaties is often linked with the superiority of these treaties over national legislation. This entails the far-reaching practical consequence that ordinary judges have to apply, in case of conflict, the treaty and not the internal legislation. Most European countries have adopted this system while others, such as the German system, transform the international treaties into internal German law.
A constitutionalizing process can be seen in particular in reforms of the transformation systems converting
them into monistic, reception systems, as it has occurred for example in Italy in 2001.
As to the rules of general international law, universal customary law or general principles, Constitutions regularly state that this type of international law is directly applicable within the internal legal order and has a rank superior to legislation. Despite the dualistic approach in Germany for treaties, general international law is accepted as a direct source of international law binding also the legislator.
Furthermore it shall be noted in this context, that the process of internationalizing constitutional law is significantly manifest in interpretation. Constitutional courts have developed the method of interpreting internal law, even internal constitutional law, in conformity with international law14 and, as far as the European Union is concerned, with EU law15. This is seen as a consequence of “open statehood”, the new mighty tendency of European and universal constitutionalism which has led to a far-reaching relativization of national sovereignty.
The second meaning of the external dimension of constitutionalization is the phenomenon that even in the international community elements are spreading which have been known formerly only in national constitutional law: fundamental rights, rule of law aspects, basic principles such as the principle of peace and the prohibition of military force as an instrument of international interrelations, etc. We can distinguish in this context a formal and substantial constitutionalizing process: the emergence of objective values constituting ius cogens is the main formal aspect of this process; international law, by its nature a law of coordination, essentially based on national sovereignty and equality, has been converting in some fields from horizontal into vertical law relations. This means that the values established in these fields cannot be derogated by horizontal coordination of the subjects of international law. The normative hierarchy which has appeared in these fields resembles the relation between legislation and constitution. This aspect of formal constitutionalization has been complemented by elements which have their origin in national constitutional concepts. They have already been pointed out above. It can be said that the more individual-related elements are guaranteed not only in national constitutions but also on the level of international law, the more international law undergoes a process of constitutionalization.
