by admin | Jun 2, 2023 | Courts, Fundamental Rights, General
Inspired by two earlier posts penned about the Hungarian Fundamental Law and constitutional interpretation by my friend Márton Sulyok, here I offer some thoughts on the topic as a comparative constitutional law scholar working within the natural law tradition. My basic suggestion is that the Hungarian Fundamental Law appears to commit legal officials to an interpretive framework steeped in classical legal thought, making it a framework that foreign natural law jurists, or anyone interested in ongoing debates over common good constitutionalism, can profitably study.
Classical legal tradition and legal interpretation: a quick primer
Following St Thomas Aquinas,[1] classical jurists tend to maintain that the core object of legal interpretation is ascertaining the reasoned intention of the legitimate political authority in positing what they decide to posit. The lawmaker (whether in the form of the prince or legislature) enjoys “stewardship of the community”[2] and has the duty and responsibility to create new law, and make determinations specifying how the particular community will respect the under-determinate principles of natural law and secure the demanding conditions of the common good. The secondary and related judicial role involves interpretation of a community’s already existing law while resolving disputes. These functions, and the role morality which attend them if they are to be done authentically, combine to radically cabin and structure a courts’ ability to make far-reaching determinations which functionally make new law. Compared to the richly creative role of the lawmaker, the structure of judicial inquiry is necessarily highly institutionally bounded. It is primarily to ask what the public authority has done in its authoritative act, ascertaining and inferring what reasoned choice it has made, mainly as manifested in the text of the legislative act. Their basic charge is discerning the reasoned intention of the legitimate authority, by reflecting on the relationship between the legal scheme it adopted and the good it wished to achieve. It is certainly not the judge’s role to displace positive law by reference to all-things-considered moral decision making or ‘palm tree justice’. Commitment to understanding lawmaking as a reasoned and authoritative act and determination, serves to constrain the scope of sound interpretive method, and would exclude as unreasonable, for instance, so-called living instrument approaches that permit judges to update legislation or constitutional provision by reference to changing moral and political views they think sound. It will also exclude forms of arid textualism that treat lex as a “cryptic collection of words dropped from the sky”[3] and not as rational ordinances aiming to promote the common good.
Classical jurists also regard posited law as part of a wider juridical ordering of a polity to the common good, but not exhaustive of the community’s law. The tradition makes a distinction between two senses of “law”: lex and ius. Lex is the enacted positive law created and promulgated by political authorities, such as a master text constitution or the statutes of designated law-making bodies. In the classical legal tradition lex is understood, as Aquinas famously framed it, as an ordinance of reason promulgated by political authorities for the common good.[4] To count as law in this focal sense, a posited law of a public authority must rationally conduce to the good of the community for which the lawmaker has a duty and privilege of care. Because the natural law only offers a skeleton law to communities – one which determines what posited arrangements are just and right – to enjoy concrete existence the basic precepts of the natural law require the sinew, flesh, and muscle provided by positive law enacted through human creativity and discretion.
Ius is the overall body of a community’s law generally, including and subsuming lex but transcending it, and containing general principles of jurisprudence and legal justice flowing from the natural law. Principles of ius, or legal justice, are not co-extensive with morality tout court.[5] Rather, they are concerned with the maintenance of a just and reasonable ordering of persons in political community through law and legal institutions, and of proper treatment of citizens by political authority; both of which are standing requirements of justice and the natural law. Or as Professor Vermeule puts it, the classical tradition incorporates a “subset of political morality within law, namely the subset bearing on the virtues of general justice and regnative prudence, of which the common good is the object”[6] and “settlement or coordination of social disputes and rational governance”[7] the central means. Principles of ius concern the “art or craft of practical reasoning about legal justice that takes into account distinctive considerations arising from the institutional embodiment of the legal system.”[8]
As John Finnis outlines, these basic precepts include moral absolutes central to a just and basically well-ordered polity like prohibitions on “intentional killing, intentional injury to the person, deliberate deception for the sake of securing desired results, enslavement which treats a human person as an object or a lower rank of being than the autonomous human subject.”[9] Other examples of non-posited principles of legal justice (often found in hard cases) cited by Professor Vermeule in his recent work include: the presumption no-one will be a judge in their own cause, that those affected by a decision will be heard,[10] that no-one shall profit from their own wrong-doing,[11] that all public power will be directed to public and not private good,[12] that retroactivity (especially criminal) is not favoured in the law,[13] that legitimate expectations or reliance interests established by state action will be given consideration,[14] that no one will be punished in the absence of law,[15] that judges will defer to reasonable legislative determinations made in the public interest,[16] that rights are not absolute but ordered to the common good and objective needs of society.[17] Even judges who have lost sight of the classical legal tradition, do not tend regard appeal to such principles as akin to appealing to moral norms external to law, but as part of its fabric and critical to interpretative practice, even if their basis in posited law or social fact sources is decidedly shaky.
Ensuring harmony between lex and ius is a critical component of a sound legal practice that is ordered to the common good. Judges working within a classical legal framework will therefore strongly presume, when ascertaining the reasoned choice of the lawmaker, that they do not “wantonly violate background principles of ius and norms of reason that are constitutive of the nature of law”[18] but will attempt to harmonize lex and ius. The primary structure of judicial inquiry may be to ask what the public authority has done by ascertaining what the authority has said; but an important supplementary task is to ask whether the court faces the nonstandard case, in which the authority’s rational ordering for the common has been imperfectly captured by what the authority said, read in light of larger background principles.[19] Those tasked with administering justice according to law, like judges, are therefore “entitled and required” to treat legal propositions enacted by lawmakers as “presumptively oriented towards justice and the common good.”[20] Part of upholding these standing presumptions will involve relying upon principles of legal justice that help to determine the good the lawmaker wished to achieve, in a manner that renders the lawmaking act intelligible as a work of reason.
Hungarian constitutional law as classical law?
There are several provisions of the 2011 Hungarian Fundamental Law specifying decision rules for legal officials interpreting statutory and constitutional text. Article R) provides that the provisions of the Fundamental Law itself are to be interpreted in accordance with their purpose, the preambular principles of the constitution, and the achievements of the historical constitution. Article 28 additionally provides for the standing interpretive presumption that provisions of the Fundamental Law serve moral and economical purposes in accordance with common sense and the common good. Some of the key preambular principles include the following propositions:
- “human existence is based on human dignity”
- “individual freedom can only be complete in cooperation with others”
- “the family and the nation constitute the principal framework of our coexistence, and that our fundamental cohesive values are loyalty, faith and love”,
- “the common goal of citizens and the State is to achieve the highest possible measure of well-being, safety, order, justice and liberty”
For statutes and other types of posited law, Article 28 provides that Courts will interpret them in accordance with their purpose and consistently with the Fundamental Law. In ascertaining the purpose of a statute, consideration will be given primarily to the preamble of that law and the justification of the proposal for, or for amending, the law. As with interpreting the fundamental law, it is presumed that statutes and other laws serve moral and economical purposes which are in accordance with common sense and the public good.
It seems to me (with all the limitations that attend being an external observer) that the provisions of the Fundamental Law concerning legal interpretation can be considered a series of determinationes guiding the interpretive practice of officials in a way thatfaithfully tracks the core classical legal precepts sketched above. For a start, the basic object of both statutory and constitutional interpretation is unmistakeably classical: it is the search for the purpose, or reasoned choice, of the lawmaker in positing what they decided to posit; by reference to the justification motivating their change to the law. Equally classical is the fact that these provisions make it clear that the search for the intention of the lawmaker takes place within a rich conceptual framework comprised of several standing juridical presumptions, which are all tied to a substantive normative picture of the nature of law-making and law-making bodies.
This paints a normative picture of law-making that rejects the idea law-making is an act of sheer will but sees it as a reasoned and purposive activity concerned with securing legal justice and the rational ordering of persons, families, and communities to their common good. As Adrian Vermeule has recently written of the Hungarian Fundamental Law, its understanding of law does not regard it as the:
“mere arbitrary command of a dominus, a master, but has a fundamentally reasoned and public-regarding aim: to promote the public welfare and public goods of peace, order and justice.”
The Hungarian Fundamental Law places a strong interpretive presumption that lawmakers will not act to transcend or transgress the intrinsic limits on their authority, or the purpose for which their constitutional office is constituted. Thus, legal officials will strongly presume statutes will be consistent with the Fundamental Law, and that all types of law will be understood consistent with moral and economical purposes in accordance with common sense and the public good. This appears to me a prudent means of ensuring legal officials remain attuned to the fact that posited law, or lex, must be understood harmoniously with principles of legal justice.
In the Hungarian context, thus, principles of ius picked out by the preamble to the Fundamental Law and the interpretation clauses include acknowledgment that law is for the sake of persons and human dignity; that the family is the basic and primary unit of the community; that individual rights must be ordered to the common good; that the institutions of State exist to serve the community and promote the good of citizens; and that the purpose of lawmaking is the common good.
Lack of explicit mention of the common good: a missed opportunity?
Márton Sulyok noted earlier on this platform that explicit references to the common good are sparse in the opinions of the post-2012 Constitutional Court and concludes, somewhat gloomily, that “Hungarian constitutional jurisprudence does not provide fertile grounds for references to the common good in constitutional interpretation.” Does this lack of explicit reference to the common good in legal interpretation mean that it is implausible to suggest Hungarian public law has a strong classical flavour? I am wary of straining the bounds of my competence in tackling this question, so I restrict myself here to simply observing that a commitment to a classical legal framework certainly does not require that judges engage in extended elaboration about what the common good requires, all-things-considered.
After all, in the classical tradition it is executives, legislatures, and the People (acting as a constituent authority or voting in referendums) that properly take the lead in specifying how a particular community will respect the under-determinate principles of natural law and secure the demanding conditions of peace and justice conducive to the common good. When it comes to resolving a particular legal dispute judges can only properly have regard to the overall demands of the common good in an institutionally cabined way, because the judicial inquiry aims to resolve legal disputes by discerning the reasoned choice of the lawmaker expressed in and through the text, not to do so by their own moral choices. As Sulyok properly observes above, legal interpretation properly done “does not replace or result in lawmaking, encroaching upon the constitutionally reserved powers assigned to the legislator”.
All of which is to say that, within a classical framework, it should not be unusual at all for direct references to the common good by judges to be sparse. Rather, judicial reflection on the needs of the common good will typically happen under the radar, as it were, by faithfully discerning the choices of the lawmaker while ensuring any interpretive ambiguities or uncertainties are resolved in favour of interpretations that presume the lawmaker acts consistent with reason and human flourishing. Adhering to such juridical presumptions will therefore, at the same time, inevitably indirectly and implicitly invite judicial reflection on the ends and goods the lawmaker wished to achieve for the common good, and press judges to correctly grasp what types of ends would make a given interpretation of an ordinance rational or irrational, or consistent with human flourishing or not.
Thus, if a Hungarian judge opts for interpretation A over interpretation B in a given case because they have concluded the latter would lead to an unjust or irrational result the lawmaker could not possibly have intended – perhaps because it would be immoral or lacking in common sense – then they will have been implicitly reflecting on the requirements of the common good in their own limited way, even if they do not explicitly invoke the term.
If I have sketched anything like a plausible account of how Hungarian legal practice proceeds, then contra my friend Professor Sulyok, it might be premature to say “Hungary is the land of (missed) opportunities” for developing a framework with concern for the common good at the heart of legal interpretation. That, at least, is the optimistic hope of this interested observer.
Conor Casey, Associate Professor, University of Surrey School of Law
[1] Thomas Aquinas, Political Writings, ed. R.W. Dyson (Cambridge: Cambridge University Press, 2002),148-149; 200-201.
[2] Adrian Vermeule, Common Good Constitutionalism (Polity, 2022) 74, 83.
[3] Id., 83.
[4] Thomas Aquinas, Summa Theologiae, Ia-IIae, q. 90, art. 4, Great Books of the Western World: Volume 18, ed. Mortimer J. Adler (Chicago: Encyclopedia Britannica, 1990).
[5] Adrian Vermeule, ‘Enriching Legal Theory’, (November 2022), Ius & Iustitium, https://iusetiustitium.com/enriching-legal-theory/.
[6] Adrian Vermeule, ‘The Common Good as a Universal Framework’, (July 2022), Balkinization, https://balkin.blogspot.com/2022/07/the-common-good-as-universal-framework.html.
[7] Adrian Vermeule, ‘Common Good as a Legal Concept’ (November 2022) Ius and Iustitium, https://iusetiustitium.com/the-common-good-as-a-legal-concept/#:~:text=%E2%80%9CThe%20common%20good%E2%80%9D%20in%20the,is%20an%20absolutely%20ubiquitous%20concept..
[8] Id.
[9] John Finnis, “Natural Law and Legal Reasoning,” Cleveland State Law Review 38 (1990) 11.
[10] Vermeule, Common Good Constitutionalism, 153.
[11] Id., 81.
[12] Adrian Vermeule, ‘The Original Scalia’ (2023) 2 Harvard Journal of Law & Public Policy: Per Curiam 1, 8.
[13] Adrian Vermeule, ‘The Theory and Practice of Common Good Constitutionalism’ (August 2022), https://iusetiustitium.com/the-theory-and-practice-of-common-good-constitutionalism/.
[14] Cass Sunstein & Adrian Vermeule, Law and Leviathan: Redeeming the Administrative State (HUP, 2021) 76-77.
[15] Vermeule, Common Good Constitutionalism, 83.
[16] Id., 61-4.
[17] Id., 164-6.
[18] Conor Casey & Adrian Vermeule, ‘Myths of Common Good’ (2022) 45 Harvard Journal of Law & public Policy 103, 124.
[19] Vermeule, Common Good Constitutionalism, 83.
[20] Gratian, Decretum: Treatise on Laws, with Ordinary Gloss, trans by Augustine Thompson O.P. & James Gordley (1993) 33; John Finnis, “Priority of Persons,” Intention and Identity: Collected Essays Volume II (Oxford University Press, 2011) 27.
Conor CASEY, Associate Professor, University of Surrey School of Law, a non-practising barrister in Ireland since 2020, specialising in administrative law, constitutional law, and legal theory. Co-author of the Irish Human Rights & Equality Commission Report on Irish State response to the COVID-19 crisis. His work has been cited by the United States Court of Appeals for the Third Circuit. Dr. Casey regularly comments on legal matters in public forums.
by admin | May 18, 2023 | Fundamental Rights, USA
In the traditional telling of the tale, an acorn falls on Chicken Little’s head and she runs around wildly telling all who will listen that the sky is falling. Since January 6, 2020, a host of polemicists and a few social scientists have been loudly proclaiming that Christian nationalism may cause the collapse of America’s constitutional order. Recently, some authors have even contended that American Christian nationalists are fomenting “civil wars across the globe.” National and international critics have warned of the dangers of Christian nationalism in European countries including Italy, Poland, and Hungary. In this essay, I explore American Christian nationalism and conclude that most—perhaps all–critics of Christian nationalism should largely be dismissed as contemporary manifestations of Chicken Little.
The sociologist Andrew Whitehead recently asserted on Twitter that “Christian nationalism is an existential threat to American democracy and the Christian church in the United States.” Similarly, Andrew Seidel, vice president of Americans United for Separation of Church and State, claims that it is an “existential threat to a government of the people, for the people, and by the people.” In The Founding Myth: Why Christian Nationalism is Un-American, the same author explains that Christian nationalists seek to codify “Christian privilege in the law, favoring Christians above others [and] disfavor the non-religious, non-Christians, and minorities.”
Amanda Tyler, president of the Baptist Joint Committee for Religious Liberty, another organization dedicated to the separation of church and state, more modestly contends that Christian nationalism is merely the “single biggest threat to America’s religious liberty.” Finally, and many other examples could be given, Philip S. Gorski and Samuel L. Perry inform us that white Christian nationalism is a “threat to American democracy.” (Note the addition of “white.” As Jemar Tisby explains elsewhere, African-Americans bring their faith into the public square in helpful, inclusive ways. Christian nationalism, it would seem, is only problematic if its adherents are white).
Christian nationalism, as defined by its critics, is an ugly phenomenon. In Taking America Back for God, Andrew Whitehead and Samuel Perry explain that it is “an ideology that idealizes and advocates a fusion of American civic life with a particular type of Christian identity and culture” that includes assumptions of “nativism, white supremacy, patriarchy and heteronormativity, along with divine sanction for authoritarian control and militarism.”
It is not unreasonable to fear that people who embrace the ideology described by Whitehead and Perry pose a threat to liberal democracy, but are there enough of them to make a difference? Whitehead and Perry answer this question with a resounding “yes.” According to them, 51.9% of Americans partially or wholly support Christian nationalism (respectively labeled by them as Accommodators (32.1%) or Ambassadors (19.8%)). These figures include the 65% of African-Americans who are Christian nationalists but, like Tisby, Whitehead and Perry explain that these are goodChristian nationalists who need not be a cause for concern (it is unclear if Hispanic and Asian Christian nationalists are as morally pure as African-Americans).
As I have explained elsewhere, there are excellent reasons to be skeptical about the statements Whitehead and Perry use to measure Christian nationalism. They may be interpreted in different ways, and three of the six simply measure whether one is committed to the strict separation of church and state. One may reasonably conclude, for instance, that religious monuments should be permitted to remain on public land, that voluntary prayer should be permitted in public schools, and that states should not be able to discriminate against religious institutions and not be Christian nationalist. Separationists like Andrew Seidel and Amanda Tyler clearly favor a public square stripped of religious images and government discrimination against religious institutions and individuals, but many Americans (and a majority of Supreme Court Justices, including, in some cases, Stephen Breyer and Elena Kagan) do not.[2]
Among the most far-fetched assertions made by critics of American Christian nationalism is that the modern American manifestation of the movement can be traced to Rousas John Rushdoony (1916-2001). This obscure Presbyterian minister did, in fact, contend that Christians should actively reconstruct society along thoroughly Christian lines, a project that resulted in Rushdoony and his followers being labeled Reconstructionists or Dominionists.
Critics of Christian nationalism inflate Rushdoony’s importance because he advocated views that may reasonably be interpreted as racist and sexist, and because he argued that Christian societies should punish eighteen offenses with death, including witchcraft, “incorrigible juvenile delinquency,” and homosexual activities by men (but not women). In other words, he advocated something approximating the toxic mix described by Whitehead and Perry. I have shown elsewhere that reports of Rushdoony’s influence are grossly exaggerated, but this does not stop even serious scholars from asserting that he was influential, as Philip S. Gorski and Samuel L. Perry do in their 2022 book The Flag and the Cross.
Most of the literature on Christian nationalism in the United States is polemical, and much of it is motivated by a progressive political agenda. This is most evident in the polemical works, but even social scientists like Whitehead and Perry tip their hand when they characterize pro-life Americans as simply being committed to“male authority over women’s bodies” and explain that Christian nationalists are redefining religious liberty to mean something more than freedom to worship. Whatever one’s position on these issues, fair consideration of pro-life Americans reveals that they oppose abortion because they are concerned with protecting innocent human life. And Americans on both the right and the left have long understood religious liberty to protect more than the “freedom to worship.” After all, the First Amendment protects the “free exercise of religion.”
Critics of Christian nationalism are not against some Christians bringing their faith into the public square; indeed, they encourage those advocating progressive causes to do so. But if someone is motivated by faith to oppose progressive ideas or support conservative ones, he or she is a Christian nationalist who poses an existential threat to the nation.
Almost all of the literature on American Christian nationalism vastly exaggerates the number of citizens who embrace the ideology and the extent to which it threatens America’s constitutional order. But that does not mean that Christian nationalism has not existed throughout American history or that it has not been harmful. Thus, it stands to reason that we provide a short overview of the American literature of Christian nationalism, and try and refute those allegations that do not correspond with the arguments above presented.
Paul D. Miller, a professor at Georgetown and author of The Religion of American Greatness: What’s Wrong with Christian Nationalism, has described most of the existing works on Christian nationalism as “rather extreme and almost comical examples of beating up on straw men—or would be, if they weren’t also fear-mongering scurrilous libel masquerading as scholarship.” There are also a handful of books written by academics that make a good faith attempt to understand Christian nationalism in America. In addition to Miller’s book, these include Andrew Whitehead and Samuel Perry’s Taking America Back for God and Philip Gorski and Samuel Perry’s The Flag and the Cross – both already mentioned above.
In my previous writings on the subject, I expressed dissatisfaction with current definitions and the authors’ assessments of the “threat” that Christian nationalism poses to the country. But I never deny that American Christian nationalism exists and is problematic. In the United States, Christian nationalism is best understood as the view that the country was founded as a Christian nation and that the federal government should protect and promote Christianity in special ways. Christian nationalists often believe that other faiths should be tolerated, but that the national government does not need to treat all religions equally.
Earlier attempts to measure American Christian nationalism conflate it with lack of support for the strict separation of church and state. But, one can support religious exemptions, religious monuments on public land, and even voluntary student prayer in public schools without being a Christian nationalist—at least as I define the concept. The following three statements in a recent Pew survey do a better job of measuring American Christian nationalism:
- The United States Constitution was
(a) Inspired by God, reflects God’s vision for America (15%)
(b) Written by humans and reflects their vision, not necessarily God’s vision (67%)
(c) Neither/no opinion/refused (15%)
2. [The] Federal government should
(a) Declare U.S. a Christian nation (15%)
(b) Never declare any religion as official religion of U.S. (69%)
(c) Neither/no opinion/refused (17%)
3. Public school teachers should
(a) Be allowed to lead students in Christian prayers (30%)
(b) Not be allowed to lead students in any kind of prayers (46%)
(c) Neither/no opinion/refused (24%)
If we average the percentage of Americans who agree with each statement, we can estimate that roughly 20% of Americans are Christian nationalists. Although I personally disagree with all three statements, I am not terribly troubled by those who agree with them.
Consider the first statement. I love the Constitution and believe that many of its authors were influenced by Christian ideas, but I am not prepared to say that it was “inspired by God.” Perhaps it was. How are we to know?
For the federal government to declare the U.S. ‘a Christian nation’ would be imprudent and off-putting to the 37% of Americans who do not identify themselves as Christian, but it is not clear that these citizens would be harmed in any material way. Currently, every American state constitution references the deity (see: Pew Research, 2017), and in the context in which they were written there leaves room for little doubt that they reference the Christian God. For instance, the third paragraph in Massachusetts constitution reads:
“We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.”
If Massachusetts were to rewrite its constitution tomorrow, I would recommend removing this language because what was completely inoffensive in 1780 may be divisive today. But all Americans live under state constitutions with such language and enjoy religious liberty and are treated with equality. Should the national government declare America to be a Christian nation, there is little reason to think this would change.
It is not at all clear that agreement with the first statement above has any relevance for law and public policy, and in the unlikely event that the national government declared the United States to be a Christian nation and allowed public school teachers to lead children in prayer, the harms would be minimal.
Again, there is no denying that such Christian nationalism exists, but it does not pose an existential threat to America that its critics claim. Nor are there good reasons to think it poses a danger to constitutional democracy around the globe. Critics who claim it does are simply parroting the American Chicken Littles who have written so breathlessly about the phenomenon.
Mark David HALL is a Professor in Regent University’s Robertson School of Government and a Senior Fellow with the Center for Religion, Culture and Democracy. His most recent book is Proclaim Liberty Throughout All the Land: How Christianity has Advanced Freedom and Equality for All Americans.
[1] Portions of this article were originally published by Discourse Magazine.
[2] See e.g. AMERICAN LEGION ET AL. v. AMERICAN HUMANIST ASSN. ET AL., 588 U. S. ____ (2019) or TRINITY LUTHERAN CHURCH OF COLUMBIA, INC. v. COMER, DIRECTOR, MISSOURI DEPARTMENT OF NATURAL RESOURCES, 582 U. S. ____ (2017)
by admin | Jun 8, 2022 | European Union, Fundamental Rights
From a European perspective, the working conditions of digital platform workers are a matter of great concern. The crisis caused by the current pandemic has dramatically increased the number and value of services rendered via digital platforms, most notably the delivery of services and online services themselves. Currently, there are 24 million EU platform workers, and the estimated value of services delivered via digital platforms reaches €14 billion. After gathering comments and suggestions from the public based on a preliminary paper, by the end of 2021, the European Union proposed specific legal instruments that aim to improve the working conditions associated with platform work – EU directive of 9.12.2021, 2021/0414 (COD). In order to justify them, the European Parliament and the European Council appealed to the right of every worker to working conditions which respect their health, safety, and dignity (Art. 31 of the Charter of Fundamental Rights of the European Union). The EU legislator wants to presume an employment relationship whenever a digital labor platform “controls” the performance of work as defined in Article 4 paragraph 2 of the directive. A broad understanding of “controlled work” allows the application of certain worker standards of protection.[1]
As J.M. Puyol Montero puts it clearly “[t]he first social laws were born out of a desire to protect the human dignity of workers, particularly of the most vulnerable workers, in the exercise of their work”.[2] The appeal to human dignity revolutionized the fundamental rights foundations of labor relations in the 19th and 20th centuries which echoed the recognition of equality of every person. It urged the state to interfere with contracts for labor leading to a new branch of law – usually called labor law – aimed at balancing employee-employer relations and ensuring decent working conditions. A similar phenomenon of both recognizing a subjective element (worker’s protection) in the performance of services and a multifaceted bundle of contracts allowing to use work and services rendered, however, has its roots in ancient Roman law, more specifically in locatio conductio (A contract for lease and work), and most broadly concerns the atypical and highly-regulated provision of services by ‘freedmen’ to patrons (operae libertorum). There is a certain structural similarity between the activities of the freedmen and platform workers. It has already been confirmed that protective regulations of freedmen functionally resemble social rights granted under labor law, and they often result from humanitarian reasons.[3] Slave-work, freedmen services, and free men services played a major role in providing services in ancient Rome. It was the services of the freedmen that attracted Roman jurists particularly, which may indicate their social importance.[4] A specific, long-term relationship – based on trust and friendship – between a freedman (subject to manumission) and his former owner existed at that time. For freedom and social protection, the person subject to manumission was to provide certain services free of charge on the basis of a contractual obligation, which were implemented by stipulatio or oath (iusiurandum liberti). The imposition of duties on freedmen gave the access to free and often good quality services provided by trusted persons and patrons were allowed to hire out (locatio conductio) such services of their freedmen to others.[5] This was an extremely advantageous arrangement for the former owners, so much so that the praetors decided to issue an edict against the abuse of freedmen which often put them in de facto slave-like position.[6] The Roman example shows that rendering services may require the institution of certain precautions and leveling of the parties concerned neither with having modern concept of labor law nor extending the idea of contract for labor, which may lead us to rethink other types of contracts which might serve this goal. Anthropological considerations – the recognition of what a human person is and what goods are considered to be essential for their life – constitute the universal framework for legislation and jurisprudence, present also in Roman law.[7] Perhaps heading in a similar direction, the EU proposal on platform work at issue here offers a mere presumption of employment bond. Nevertheless, it may easily become a new test for the existence of an employment bond which could interfere too heavily with the freedom of contract and the current contractual scheme of private law. We must note that the same issues can be addressed by different nation-states in various ways, according to which side of the problem they find emphatic: they can side either with freedom of contract, invoking strong separation and difference between bona fide employment relationships and civil-code based service contracts which do not entitle to protection measures; or, on the other hand, with the general concept of protecting those who work under certain circumstances, and so including platform work within this realm and regulating it, as well as imposing specific protective duties on the suppliers of such work from the point of view of fundamental, human rights, such as dignity. Some states put more stress on functions of control and on soft measures such as audits or requiring skills certificates to operate in the market. At the EU level, there is fierce discussion over freedom of movement versus freedom of business (protection of competition) which boils down to whether platform workers indeed are workers employed by their suppliers or are rather self-employed individuals merely rendering services to their suppliers. As for now, the EU would seem to believe in finding a compromise between the two approaches, i.e., between the high-protection and no-duties approaches.
Today, a worker’s right to protection of the goods listed in Article 31 CFR has its basis and source in human dignity (Article 1 CFR), and, as a result of this, dignity is mentioned twice. As one of the goods protected under Article 31, however, dignity is listed on an equal level with the other goods, not given prominence, whereas in Article 1 it is primordial. The subtle ambiguity of dignity as applied both in labor law and in constitutional law appears not only in this act but also in all legal orders, where human dignity shines as the overriding constitutional principle. In the Polish legal scholarship and jurisprudence, discussion is focused on the relation between the constitutional principle of human dignity and the dignity at work regulated in Art. 111 of the Polish Labor Code: “The employer is obliged to respect the dignity and other personal rights of the employee”. In German labour law, protection of dignity is expressed with regards to harassment in general and sexual harassment in particular under §3 of General Act on Equal Treatment of 14th August 2006. The doctrine of labor law explicitly states that the dignity mentioned in the famous triad of employee goods refers specifically to dignity at work. What this actually means is, however, debatable. On the one hand, Art. 36 “is silent as to what measures are necessary to comply with this right”;[8] it simply reinforces the importance of human dignity simpliciter (Art. 1 CFR). More outspoken is the “twin” Article 26 of the European Social Charter (Revised, ESCR), which refers to dignity targeted to provide respect and honor towards the employee as a human being – towards his or her special position in the cosmos.[9] This has a different meaning from the fundamental human dignity so widely celebrated nowadays, which in Art. 31 CFR is treated relationally and reduced in effect to protection against bullying and harassment.[10] On the other hand, the reference to dignity in Art. 31 is considered as a safety valve, an open clause, which allows for the many ways in which workers can be protected to be extended freely, as well as the requirements of decent work to be applied also to other persons providing work, i.e. those not qualified as employed under an employment contract[11], as we see in the case of the discussed directive addressed to platform workers.[12]
Today, the constitutional obligation to provide healthy, safe, and secure working conditions is implemented through labor-law regulations, and in the case of service contracts only in specific types this obligation is particularly required. In Poland, for example, the labor code (Article 304. § 1 of the Polish Labor Code) imposes such obligations in civil-code contracts under specific circumstances only;. Polish law imposes the obligation of the observance of health and safety rules in the case of service contracts when a person employed under a service contract works at a workplace designated or organized by the employer, even if an employment relationship does not bind them or if the employer is not an employer as defined by labor law—moreover, Article 304. § 3. of the Labor Code imposes this obligation accordingly also on entrepreneurs who are not employers (within the meaning of the Labor Code) and who organize work performed by natural persons on a basis other than employment relationships or by self-employed persons. In contrast, in English common law such protection must be provided only when a service contract is performed at the client’s site.
In Roman law, the obligation to protect a worker appears for the first time on the occasion of the mercennarius, and so concerning those who perform hired work as part of locatio conductio. It turns out that the rules of Cato had already contained indications that in the case of the mercennarius certain factors should be taken into consideration – time, age, illness, and work breaks. However, when we look at the main body of Roman law – Justinian’s Digest – solutions protecting workers are rarely mentioned under locatio conductio because the emphasis is on the services of freedmen. Together with the phenomenon of freedmen who provided operae for their patrons under the contract of stipulatio and also for third parties within locatio conductio, in Rome, there were various kinds of services previously rendered only within the noble commission contract (mandatum): medical services, teaching, etc. Both hired workers and freedmen were protected with similar measures due to the unifying concept of work (operae). Paul, a Roman jurist of 2nd c. AD, argued that the type of freedmen’s services offered to the patron should be assessed in accordance with the age, status (dignitate), health, need way of life, and other such considerations of both parties (Justinian’s Digest – D. 38,1,16, Paul, Edict, book 40). Neratius, a Roman jurist of 1st-2nd c. AD introduces a subjective element[13] that the performance of services depends on the character of the person performing them (existimatio edentis), and explains that only those services are to be performed which befit his position (dignitati), abilities, habits, and occupation (D. 38,1,50, Neratius, Replies, book 1). In the case of operae libertorum, the services and labor provided were in addition to the normal activities of the freedmen, and the protection of freedmen expanded in the cases when freedmen were dedicated fully to the patron and had no time for carrying their own businesses. As for the services provided within the platform work, these are either an addition to normal work or become the main source of income. There are fears that, when they become the main source of income, they will lead to huge uncertainty – a most precarious form of work – “a new precariat class of workers who have no job security, are slaving away for poor pay”.[14]
We may make a similar comparison to platform workers, but not with regard to all categories of platform workers. Just as the contract of locatio conductio served not only to provide work but also to provide specific services (especially those of a variety of craftsmen), so is the case with platform workers: we may distinguish between various services intermediated by the various platforms. Protection could be extended without requiring an employment relationship but merely based on a service contract and the unifying concept of work (already present in EU law). Protection could be extended only to specific types of work, e.g., with regard to the workplace and time organized by the platform or by the client; provided on the client’s site; provided upon the call/demand of the platform, etc., etc. (these provisions resemble the Roman patron’s allowing freedmen services to third parties). Protection need not necessarily be extended to all platform workers but rather only as it would seem reasonable according to the circumstances: online platform workers are more independent and flexible, while on-site platform workers require more protection. However, we note that the term ‘workplace’ needs to be understood broadly, i.e., include physical workspace and virtual workplaces.
To complement this safety valve, there are also plans to introduce a special category of “economically dependent self-employed” into the Polish Labor Code, which would serve to stabilize the situation of individual entrepreneurs who enter into quasi-employment relationships and thus to reduce the phenomenon of labor exploitation based on formally B2B relationships that nevertheless lead to an actual employment relationship. In this case, creating a “third” way of employment should be approached with caution. It has been used in some countries for a long time (Canada) or for some time (Italy), but due to the growing phenomenon of sharing economy and especially gig economy, the necessity of introducing a new “third” form of employment has been raised in many countries for some time. Meanwhile, recently, courts, legal doctrine and legislators in other countries are choosing to qualify even such a relationship as an employment relationship. In this regard, both national and international courts continue to resolve specific cases in a casuistic manner, once attributing to employment the nature of a contract of employment, while at other times maintaining its civil law status. The interpretation of the employment relationship covering relations that serve to “conceal” the employment of an employee will be conducive to greater regulatory clarity and will protect us from legislative inflation and problems with the application of new legal constructs.
Today, protection extends from employment contracts to service contracts, so the situation at the historical roots of protective provisions has been reversed. Whereas in the Antiquity, the protection of workers was developed historically within service contracts and was seen as inherent to them, today these origins have been forgotten. In fact, many of the protective laws were based on Roman law on respect for human nature, even if taken pragmatically (not based on the human dignity concept unknown to them) and sometimes solely on the basis of aequitas (equity) on natural law. To sum up, further investigations into Roman law’s[15] way of accommodating different contractual schemes for using other’s work and services can give us some interesting points to consider as regards how to set up the situation of people, who provide services in different contractual configurations today, which pose a problem for ensuring decent working conditions without expanding highly regulated employment bond and curtailing private law arrangements while at the same time realizing the violation of certain human rights.[16]
[1] Controlling the performance of work within the meaning of paragraph 1 shall be understood as fulfilling at least two of the following:
(a) effectively determining, or setting upper limits for the level of remuneration;
(b) requiring the person performing platform work to respect specific binding rules with regard to appearance, conduct towards the recipient of the service or performance of the work;
(c) supervising the performance of work or verifying the quality of the results of the work including by electronic means;
(d) effectively restricting the freedom, including through sanctions, to organise one’s work, in particular the discretion to choose one’s working hours or periods of absence, to accept or to refuse tasks or to use subcontractors or substitutes;
(e) effectively restricting the possibility to build a client base or to perform work for any third party.
[2] Jose Maria PUYOL MONTERO, “Dignified Work and Dehumanization of Work. Some Reflections On The Prehistory of Labor Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 130.
[3] W. Waldstein, Operae libertorum. Untersuchungen zur Dienstpflicht freigelassener Sklaven, Stuttgart 1986, p. 400, 403.
[4] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 144–145.
[5] Idem, p. 153–154.
[6] Idem, p. 147–150.
[7] Franciszek LONGCHAMPS DE BÉRIER, “Persona: Bearer of Rights and Anthropology for Law”, in J.M. PUYOL MONTERO ed., Human dignity and law. Studies on the dignity of human life, Valencia, 2021, p. 53.
[8] Tobias LOCK, “Article 31 CFR”, in M. KELLERBAUER, M. KLAMERT and J. TOMKIN (eds), The EU Treaties and the Charter of Fundamental Rights, Oxford, 2019, p. 2189;
[9] Article 26 – The right to dignity at work
With a view to ensuring the effective exercise of the right of all workers to protection of their dignity at work, the Parties undertake, in consultation with employers’ and workers’ organisations:
1 to promote awareness, information and prevention of sexual harassment in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct;
2 to promote awareness, information and prevention of recurrent reprehensible or distinctly negative and offensive actions directed against individual workers in the workplace or in relation to work and to take all appropriate measures to protect workers from such conduct.
[10] Tobias LOCK, “Article 31 CFR”; Ellen PINKOS COBB, Workplace Bullying and Harassment: New Developments in International Law, Abingdon-New York: Routledge, 2017, p. 6.
[11] Brian BERCUSSON, European Labour Law, Cambridge, 2009, p. 380–381; Leszek MITRUS, “Godność jako podstawa aksjologiczna praw pracowniczych”, in M. SKĄPSKI, K. ŚLEBZAK, Aksjologiczne podstawy prawa pracy i ubezpieczeń społecznych, Poznań, 2014, p. 140; 142.
[12] Cfr. The whole argument on dignity, G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, in Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).
[13] Thomas A.J. McGINN, “Hire-Lease in Roman Law and Beyond”, AHB 27 (2013), p. 178.
[14] Joep CORNELISSEN, Magdalena CHOLAKOVA, “Profits Uber everything? The gig economy and the morality of category work”, Strategic Organization (December 2019), p. 8.
[15] G. Blicharz, Humans as a Service: Ethics in the Sharing Economy and the Ancient Model, in: Human Dignity and Law. Studies on the Dignity of Human Life, J.M. Puyol Montero (eds), Tirant lo Blanch 2021, p. 134–162 and G. Blicharz, Ancient Origins of Dignity at Work: Freedmen’s Social Protections and Digital Platform Workers, , in: Human Dignity, Vulnerability and Law. Studies on the Dignity of Human Life , J.M. Puyol Montero (eds), Tirant lo Blanch 2022 (forthcoming).
[16] The paper has been made possible thanks to the National Science Centre (Poland) PhD holder Grant– Sonata 14 no. 2018/31/D/HS5/01951.
Grzegorz Blicharz, PhD is Assistant Professor at the Chair of Roman Law at the Faculty of Law and Administration, Jagiellonian University in Kraków, Poland, where his work focuses on Roman law, comparative law, European legal tradition, and governing the commons. He serves as co-editor of the Forum Prawnicze law journal and has held visiting appointments at the University of Oxford (2020) and Antonin Scalia Law School at George Mason University (2021).
by admin | Feb 28, 2022 | European Union, Fundamental Rights
Different interpretations of the precautionary principle with regard to Article P) of the Fundamental Law of Hungary
As I have already remarked in one of my previous articles, the Fundamental Law of Hungary contains an Article dedicated to preserving the environment for future generations. I have done extensive research on this Article P) (1), and made a point of mentioning a particularly important principle that governs how we interpret the Article. While there are several related principles which we can mention when discussing this issue, the one which I would like to elaborate on is the precautionary principle.
The precautionary principle, together with the prevention and the restoration principles determine human activity in relation to the environment.[1] These three principles can also be interpreted collectively,[2] but it is the precautionary principle which concerns the most common human behavior.[3] The principle stipulates that if the effect of a certain human behavior – for example a decision taken by the governing bodies – on the environment or certain elements of it cannot be shown, then the human behavior in question shall be considered something that inherently poses a potential danger to (the elements of) the environment.[4] Consequently, the legislator must consider risks which are likely or certain to occur during the decision-making process.[5] The precautionary principle is now seen as one that represents an approach to the protection of the environment or human health based on taking precautionary measures even when there is no clear indication of harm or threat thereof,[6] so that we should treat human activity as a potential threat.[7] The foundation of the principle is that our knowledge of science is limited, thus the time of protecting our environment must begin as soon as possible.[8]
While all of this is undisputed as far as what the principle itself entails, different scholars have expressed a variety of views on what the precautionary principle can govern. Notably, Gyula Bándi, the current Ombudsman for Future Generations, has a strong opinion on the issue. According to him, the precautionary principle is not only an environmental but also a constitutional principle.[9] This means that in his interpretation the principle can be applied not only to issues relative to environmental law, as we have seen it and been discussing its uses, but also to constitutional law as a whole. If the precautionary principle would be applied in the entirety of constitutional law, as he proposes, that would cause a huge shift. To my mind, it would make decision-making processes much too long as well as unstable. I personally do not think that the usage of this principle on such a wide scale could lead to further preservation of our environment and the future of the next generations. Currently, the application of the precautionary principle is working and while its expansion in theory could lead to a better level of preservation, we must think about the issue in realistic and practical terms. Rather than reaching its original goal, it would slow down development and public administration as a whole. If this approach would become legally enforceable, the proportionality test should best be applied not just in terms of whether an activity has a significant impact on the environment, but also to determine whether this principle can be applied with regard to a specific issue. I would suggest limiting its use to intersectional cases where environmental and constitutional law issues are both concerned, such as in the case of Decision 16/2015. (VI. 5.) of the Constitutional Court of Hungary.
Despite his current objective to broaden the interpretation of the precautionary principle, I have done research on the practice of the Ombudsman for Future Generations, without uncovering any examples of such broad interpretation. Taking a look at the practice of the Ombudsman for Future Generations, we can see that the precautionary principle does not appear in every report, motion or resolution. Sometimes the basis of reference is limited to Articles XX and XXI of the Fundamental Law.[10] The decisions of the Constitutional Court[11] are cited many times in all available annual reports on the activities of the Commissioner for Fundamental Rights, which demonstrate the depth of the relationship between the two bodies. This is especially important as we can see that the Constitutional Court also applies this principle in environmental issues. In 2018, the Constitutional Court stated that the chance of damage occurring when making decisions about environmental issues shall always be examined.[12] The Constitutional Court also stipulated in its interpretation that due weight must be given to this principle in the course of decision-making.[13] This all ties back to how the Constitutional Court sees the precautionary principle as a specifically environmental principle. I am curious how the process of legislation as well as the entirety of public administration would change, were the precautionary principle always present as an obstacle when new legislation was about to be introduced. Because this principle raises the standard of protection to the level of possible endangerment without sufficient scientific proof, it would be exceedingly easy to halt a legislation by summoning the precautionary principle, were it ever widely applied.
In the examination of the activities of the previous Ombudsmans, as well as the current Deputy Commissioner for the Protection of the Interests of Future Generations – Dr Gyula Bándi-, the precautionary principle has been invoked in 17 of the last 27 years, a total of 42 times. Since 2012, the application of the principle has grown exponentially, appearing every year.[14] Regarding environmental administrative issues, the need for a broad interpretation as a goal is clearly visible; the Ombudsman for Future Generations would prefer the interpretation as a constitutional principle. The non-derogation principle also raises interesting questions, as its wider interpretation in a stronger concept is also more and more commonly desired. This principle, in my opinion, could be a better fit for application in the context of constitutional law issues, however, I would advise caution in it becoming much more pronounced as well.
Another interesting piece of information to note is how different the current situation of Hungary is compared to the United States’ stance on the use of the precautionary principle. While we aim to implement further precautionary measures into public law as a whole, Gail Charnley and E. Donald Elliot write about the principle of legality, and how extensively one must present factual reports proving significant risk before any measure can be taken to counter a potentially harmful action. While I wholeheartedly agree with E. Donald Elliot’s and Daniel C. Esty’s view, that “imposition of a credible risk of a risk without someone’s informed consent, not merely provable actual injury, should be cognizable as a harm that environmental law should address to the extent practical”, I also think that the right way to implement the precautionary principle is only within the confines of environmental law, simply because of its very nature. I would be very interested in pinpointing where the fine line between the lack of use of the precautionary principle that characterizes the USA’s approach, and the increased interpretation of the principle that threatens to overspill into public administration lies.
To sum up, I have to say that even the Ombudsman for Future Generations’ practice raises questions about the applicability of the strong concept[15] of the precautionary principle. At the end of the day, our most noble end goal is to preserve the environment, natural resources and our culture itself for future generations, but we must be careful to preserve the present’s development, too, in the process.
[1] Olajos István: The precautionary principle in the practice of the Hungarian Constitutional Court and the connected agricultural innovations, Zbornik radova Pravnog fakulteta Novi Sad 53(4):1391-1412, 2019. DOI:10.5937/zrpfns53-22769
[2] Fodor László: Környezetjog, Debreceni Egyetemi Kiadó, Debrecen, 2014; Fodor László: ”A környezetjog alapelvei”, Környezetjog (ed. László Fodor), Bíbor Kiadó, Miskolc, 2003, pp. 40-43.
[3] Timothy O’Riordan, James Cameron, Interpreting the Precautionary Principle, Earthscan, London, New York, 1994.
[4] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrár- és környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged.
[5] HCC Decision 13/2018. (IX. 4.) Reasoning [20]
[6] Stuart Bell, Donald McGillivray, Ole W. Pedersen, Environmental Law, Oxford University Press, New York, 2013. pp. 68.
[7] Bándi Gyula: ”Az elővigyázatosság elvének mai értelmezése”, Új kutatási irányok az agrárés környezetvédelmi jog területén, conference organised by University of Szeged, Hungarian Association of Agricultural Law and Association of Hungarian Lawyers, 16 May 2019, Szeged.
[8] Fodor László: Környezetvédelmi jog és igazgatás, Kossuth Egyetemi Kiadó, Debrecen, 2007 pp. 48.
[9] A jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes állásfoglalása, AJB-3658-2/2018. pp. 4.
[10] Közös jelentés egy vasútállomáson működő hangosbemondó kapcsán AJB-4642/2020. pp. 2-3.
[11] Particularly HCC Decision 28/2017. (X. 25.), HCC Decision 13/2018. (IX. 4.), HCC Decision 17/2018. (X. 10.), HCC Decision 17/2018. (X. 10.), HCC Decision 4/2019. (III. 7.) and HCC Decision 4/2019. (III. 7.)
[12] HCC Decision 17/2018. (X. 10.) Reasoning [91]
[13] HCC Decision 17/2018. (X. 10.) Reasoning [87]
[14] Mercz Mónika: Az Alaptörvény P) cikkének elemzése a jövő nemzedékek érdekeinek védelmét ellátó biztoshelyettes gyakorlatának tükrében (konzulens: Olajos István), Tudományos Diákköri Dolgozat, Miskolc, 2021. pp. 19.
[15] Szilágyi János Ede: The precautionary principle’s ’strong concept’ in the case law of the Constitutional Court of Hungary, Lex et Scientia No. XXVI, Vol. 2/2019. pp. 88-112.
Mónika MERCZ: Senior undergraduate law student at the University of Miskolc (Hungary). As a certified English legal translator, she is currently working as a project coordinator at the Mathias Corvinus Collegium (Budapest, Hungary) and is a member of the Editorial Board of the legal blog Constitutional Discourse. Mónika is the Secretary General of Miskolc (Hungary) branch of the European Law Students’ Association (ELSA). In recognition of her academic achievements, she was a recipient of the National Higher Education Scholarship 2020.
by admin | Feb 15, 2022 | Fundamental Rights, USA
Reading the most recent publication of Professor Carlos Bernal here on Constitutional Discourse about the fundamental features of American Constitutionalism in light of the 2020 Report on the Commission on Unalienable Rights lead me to dust off an old article I wrote back in 2020 when the Report was originally published. Bernal’s thoughts have induced me to look at the Report’s findings in light of European constitutionalism and its most fundamental features as they may be reflected also by the Report in a comparative point of view. I think that there are numerous grounds for cross-fertilization between American and European ways of thinking about constitutionalism and human rights, and as Bernal argues, “dialogue concerning comparative practices is quintessential to improvement.”
In the spirit of this dialogue, I would like to address some of his thoughts on American Constitutionalism through the eyes of a European constitutional scholar, with some references to the current debates in the realm of European constitutionalism. The particulars of the 2020 Report might already be known to many who are familiar with recent developments of US human rights policy, but it was essentially the product of an independent expert commission comprising 11 experts. Its objective: to provide a basic description of US constitutional thought and human rights perceptions down to the level of defining principles in terms of the natural law origins that define American commitments to innate and unalienable rights. Bernal’s post described the seven basic functions of these rights, so I am not going to focus on those, but rather treat the question what the findings of the Report might offer for thinkers regarding the most recent European debates in terms of shifting policies, which was the intended goal of the Report at the outset, setting examples and providing patterns for other countries.
With the gradual evolution of the human rights framework in the Council of Europe and also more recently in the European Union, the fundamental question that has also been at the heart of the Commission’s mandate is: how can the US preserve its leading role in promoting human rights internationally. In thinking about the future of Europe, many facets of the EU’s role as a global actor have come to the surface and with the continuing influence of the Charter of Fundamental Rights, questions of the EU’s fortitude in global relations also come to the foreground in the human rights context. (Early examples to this can be many forms of human rights dialogue – reinforced by the institutional changes of the Lisbon Treaty – used by the EU (and the EEAS) to influence both European and non-European legal systems via this “foreign policy tool” to harmonize human rights approaches.)
If we talk about the Report’s findings, relating them to European debates, we might notice the many points it makes about the role of subsidiarity. The Report seems to connect the universality of human rights with their pluralism, or as we call this in Europe, particularity via subsidiarity as ‘connective tissue’. Subsidiarity as a principle that permeates human rights thinking and regulation appears in the Report as it traces back to the 1948 UDHR, which is emphatic because it focuses on the “holistic understanding of individual rights in community” – as the Report states. According to the Report, the UDHR set forth a minimal set of rights (adopted by almost complete consensus) thus ensuring that the universal principles laid out therein will be – in every case – concretized in particular contexts, and this is the one and only possible and practical way to allow for such particularity/pluralism establishing an actual common understanding of the nature and content of these rights across cultures and nations.
The Report remains virtually silent on the issue of the changing social contract, which can be experienced by a gradual shift in the world’s political communities from the relinquishment of rights (in order to gain other rights) to increasing and overarching rights claims. What the Report does in this context, is that it evaluates “new rights”, which – if left unchecked – might weaken the force of human rights protection by a continuous and unstoppable translation of changing political preferences into newer and never legal categories. (As it will be also emphasized below, in accordance with the Report’s findings, these checks or this control over this ‘translation process’ is to be exercised by the sovereign nations-state.)
Within this context, the Report also looks at the issue when American foreign policy can take into account the possible support for a new human rights claim. Among all relevant conclusions, I would like to emphasize the one that assigns the baseline for this assessment to the originalist approach to the text and interpretation of the UDHR, then looking for possible answers in comparison with American constitutional principles, moral, political and legal tradition, by finally asking the question whether a new rights-claim can be properly inserted into existing systemic structures of human rights.
In the following, the Report also addresses the expansion of meta-juristic (extralegal) standards, looking at claims originating in such organizations that seem to operate with democratic checks and balances, which could not have been subjected to such necessary debate inherent to democratic processes in a nation state that could have solidified their legitimacy. After stating that promoting unalienable rights in other countries might be fruitful in many ways without infringing upon the sovereignty of these nation states, the Report identifies seven challenges in foreign policy action directed human rights promotion. These are: (i) the lack of human rights culture, (ii) failing international organizations, (iii) “autocracy challenge”, (iv) new technologies and rights, (v) migration, (vi) global health, pandemic, (vii) rise of violations by non-state actors.
Contrary to Bernal’s seven points, which gave rise to my writing of this reply, I am not going to treat each of these seven challenges individually, as they each would be worthy of their own dedicated blogposts. However, I would briefly like to say a few words about what the Report characterizes as the decline of “human rights culture”. The Commission talks about the decline of dignity and a “waning of concern” for basic rights. We are aware how many new rights tend to emerge – especially these days – from the many possible “penumbras” of the human rights universe, and how these rights might be frowned upon by many that are in favor of relying on a common constitutional heritage that embodies the foundation of our human rights culture. These many new details (new rights-claims) are what the Report rightly characterizes as being at fault for diverting the attention of many international organizations, not or no longer being able to fulfill their intended roles. (Let us only consider ongoing talks about UN reform, for instance.) In this context the Report also aptly states: “Diplomacy is always to be preferred but is sometimes inadequate.”
To address these challenges the Report compiles a list of 12 conclusions, and from the point of view of current debates on European constitutionalism, I would like to emphasize only four now.
1. According to the Report, the universality of human rights does not mean uniformity by bringing these rights to life. In other words, there is adequate room for particularity/pluralism until it reaches the threshold of cultural relativism. I think this is one of the strongest conclusions of the Commission’s work.
2. The above particularity is transformed into ‘margin of appreciation’, which the nation states are told to have in basing their human rights policies on their respective national traditions, and
3. National sovereignty is a vital issue of ensuring human rights.
4. As for subsidiarity, already addressed above, the Report states – in obvious reliance on the American model of federalism – that decisions need to be brought on the level closest to the life of the given community, and levels of decision-making above these may only intervene in these processes by assisting and not replacing them.
It is a very peculiar feeling for a European constitutional scholar such as myself to be reading these thoughts in the Report made in the USA any by the USA. It is peculiar because the main findings of the Report seem to echo or resonate the key arguments and keywords, slogans of every-day European (and also Hungarian) debates about European constitutionalism. These keywords are: sovereignty, essential state function, subsidiarity, nation states and their margin of appreciation in shaping legal regulation of human rights, and the ability of inter- (and supra)national organizations in holding them back. And all this in a text, which was compiled with the initial objective of serving as an exhaustive commentary of the American constitutional tradition based on one of the most influential human rights documents of the United Nations, describing why and how the United States can and may support human rights efforts of other countries.
To my mind, this just means, that no matter the context of constitutionalism, the basic debates are exactly the same, whether we are in Europe or in America.
Nil novi sub sole – There is nothing new under the sun. And this is why we can and should talk about these issues to improve our constitutional systems through the migration of constitutional ideas and cross-fertilization, despite all of the “caveats” that Professor Bernal calls attention to, in reference to Binyamin Blum’s work, where he talks about the problems of “external imposition” and “emulation” or foreign ideas, patterns or practices.
Márton SULYOK, lawyer (PhD in law and political sciences), legal translator. As a graduate of the University of Szeged, he has been working for his alma mater in different academic and management positions since 2007. He is currently a Senior Lecturer in Constitutional Law and Human Rights at the Institute of Public Law of the Faculty of Law and Political Sciences (Szeged), and the head of the Public Law Center at MCC (Mathias Corvinus Collegium) in Budapest. He previously worked for the Ministry of Justice in Budapest and has been an Alternate Member on the Management Board of the Fundamental Rights Agency of the European Union (2015-2020). E-mail: msulyok@mcc.hu
by admin | Feb 8, 2022 | Fundamental Rights, USA
The concept of ‘unalienable rights’ became the subject of a new chapter of the “Human Rights Era” in American Constitutionalism when, in July 2019 Secretary of State Michael R. Pompeo announced the creation of a Commission on Unalienable Rights. The Commission was an independent and nonpartisan institution, empowered to provide the US State Department with advice on human rights grounded in the United States’ founding principles and the principles of the 1948 Universal Declaration of Human Rights. In 2020, that group of highly regarded intellectuals and legal scholars published the final report of the work of the Commission. The Report recasts the concept of unalienable rights through a historical and normative analysis of American constitutionalism and its relationship with the Universal Declaration of Human Rights. The Commission’s core goal was to explore the meaning, evolution, and relevance of the concept of unalienable rights. In addition, they aimed at explaining the relationship between unalienable rights and human rights. Interestingly, the Report included a renovated conception of unalienable rights. In this post, I would like to highlight seven functions that the concept of unalienable rights can play in American Constitutionalism. This post explains these “Magnificent Seven” functions in light of comparative constitutional law.
The seven functions are: Unalienable rights (i) position Human Dignity as the highest value of the American Polity; (ii) restate the protection of unalienable rights as the mission that drives the domestic and foreign action of authorities; (iii) open constitutional discourse to practical reason and moral deliberation; (iv) bridge the divide between positive and natural law; (v) open the legal and political system to international human rights law; (vi) open the afore-mentioned system to comparative constitutional law; and (vii) create an avenue for the transnational migration of American ideas on human rights.
Let us have a brief look at these seven fundamental features one-by-one.
First, the concept of ‘unalienable rights’ places human dignity as the highest value of the American polity. This centralized placement is a consequence of the necessary connection between unalienable rights and human dignity. The adequate protection of human dignity cannot be provided without adequate protection of unalienable rights. In this way, unalienable rights are necessary entitlements that a human being ought to enjoy for living a life with dignity.
This general setting connects the concept of unalienable rights to universality as a feature of human rights. As the Report states, unalienable rights are rights (i) inherent to and in all persons; rights that they hold because of their nature or essence – which does not change throughout time or space; and that (ii) are inseparable from our humanity. International or comparative texts, such as the Preamble of the Universal Declaration of Human Rights, Article 1 pf the European Union Charter of Fundamental Rights, the Preamble of the American Convention of Human Rights, Article 1 of the German Basic Law, and the Israeli Basic Law on Human Dignity and Liberty all entrench the very same feature. In this sense, the Report is dissonant with those international sources of law – including national constitutions – that define the essence of human rights.
Second, the Report restates the protection of unalienable rights as the mission that drives the domestic and foreign actions of political authorities. Political authorities always have a constitutional mission to accomplish. For instance, Karl E. Klare associated the mission of authorities under the 1996 South African Constitution with the transformation of the “political and social institutions and power relationships in a democratic, participatory, and egalitarian direction”. In an analogous manner, the mission of American constitutionalism is the protection of unalienable rights. As the Report posits: “the distinctive traditions that nourished the American spirit contributed to the core conviction that government’s primary responsibility was to secure unalienable rights – that is, rights inherent in all persons. The Declaration of Independence proclaims this core conviction, and the Constitution of the United States establishes political institutions to make it a reality”.
Third, the concept of unalienable rights opens constitutional discourse to practical reasoning and moral deliberation. This is a consequence of the indeterminacy of ‘unalienable rights’ concerning, at least, three core ontological questions: (i) What are those rights?; (ii) What is their scope and content?; and (iii) To what extent can political authorities limit them? No one can answer those questions and provide a justification without applying on of resorting to practical and moral arguments. Accordingly, the concept of unalienable rights layers a ground for the deliberation of different political and moral views in a democratic and pluralistic society.
Fourth, the concept of unalienable rights bridges the divide between positive and natural law. The entrenchment of these rights in the amendments to the U.S. Constitution and relevant constitutional jurisprudence implies acknowledging that the positivity of rights (by means of text and precedent) matters. Nevertheless, it also implies opening the possibility of normative critique of political and judicial decisions by using the natural-law theories regarding the origins of these rights. Hence, citizens, organizations of the civil society, and authorities can employ all kinds of natural-rights and critical-rights theories to ground or challenge currently valid and enforceable positive rights. The strength of those critiques depends on the soundness of their justifications within the framework of the different theories of human rights, be it substantive – such as traditional Judeo-Christian theories, libertarian, democratic or welfare theories –, or procedural. Substantively speaking, Bible-based theories usually have a strong power of justification (liberty, Deuteronomy, equality, Colossians, Due Process, the destruction of Sodom and Gomorrah). Similarly, liberty- (Locke, Rawls), democracy- (Jürgen Habermas, Nino) and the social state (Sen, Herman Heller) theories are also influential. Procedurally speaking, the decision should be made about who (i.e. the people of the USA, Congress as the legislature, the Judiciary, certain majorities or minorities) shall resolve the ontological question of what procedural fairness means (to them). Besides the decision about ‘who’, the ‘how’ is also significant. This simultaneously gives rise to a possibility and a peril: overcoming some problems of ‘US exceptionalism’ vs. the possibility of an ‘abusive constitutional review’.
Fifth, the concept of unalienable rights opens the legal and political systems to international human rights law. Answering the three core ontological questions concerning unalienable rights – mentioned above – presuppose answering the epistemic question on how to access to the necessary knowledge for providing a sound response to them. Interlocutors of political and legal deliberation can use international human rights law as evidence for responding to this epistemological challenge. In this sense, the entrenchment of a right in international human rights law is an evidence of the validity of that right as an unalienable right.
Sixth, the concept of unalienable rights opens the legal and political system to comparative constitutional law. Answering those core ontological questions allows for an engagement with foreign practices concerning the recognition and adjudication of constitutional rights through the eyes of comparative constitutional law. The purpose of that engagement, which has historically elicited interesting debates, is developing a reflection on what are the “normatively preferable best practices” concerning rights in a constitutional democracy and where are the limits of legal importing, constitutional borrowing.
Finally, as for the seventh feature, the counterpart of engagement with comparative constitutional law is that the concept of unalienable rights opens an avenue for the transnational migration of American ideas on human rights. In this way, American doctrines and rules concerning the entrenchment, adjudication and protection of unalienable rights can illuminate other jurisdictions that face those never-ending challenges.
There are, however, some caveats to consider and address that might lie ahead in this sense, when ideas and doctrines travel across jurisdictions in an era of constitutional convergence. Authorities can use migrating ideas or doctrines in problem-solving, “supplying data and policy options for confronting common problems”. However, an abuse of migration can lead to “external imposition” of doctrines and values (by foreign countries, promoting change through incentives and threats), and inappropriate “emulation” (copying practices or solutions of “admired” legal systems). In any case, dialogue concerning comparative practices is quintessential to institutional improvements. The concept of unalienable rights, in the way the Commission recast it, is a key to unlock deliberation on the improvement of human rights compliance in American Constitutionalism.
Prof. Carlos Bernal specializes on the interpretation of constitutional rights and comparative constitutional change. After service as a justice of the Colombian Constitutional Court, he became a professor of law at the University of Dayton School of Law in August 2020. In 2021 he was elected as an Inter-American Human Rights Commissioner for the term 2022-2026. He has previously held visiting professorships at the Faculties of Law of the Universities of Paris I (Sorbonne) and X (Nanterre), the University of Copenhagen, the Hebrew University of Jerusalem, and the University of Leon (Spain). He has also held Senior Research Fellowships at the Yale Law School, the Kings’ College Law School, and the Max Plack Institute for Comparative Public Law and International Law (Heidelberg).
