David S. Law
Washington University in Saint Louis - School of Law; Washington University in Saint Louis - Department of Political Science
University of Virginia School of Law
March 14, 2013
California Law Review, Vol. 101, 2013 Forthcoming
Washington University in St. Louis Legal Studies Research Paper No. 12-09-03
Virginia Public Law and Legal Theory Research Paper No. 2012-55
It is often said that constitutions are mere parchment barriers that cannot by themselves limit the power of the state or guarantee respect for rights. Little is known at a global and empirical level, however, about the extent to which countries fall short of their constitutional guarantees. This Article documents empirically the global prevalence and severity of constitutional noncompliance over the last three decades and identifies the worst offenders, or “sham constitutions,” across several substantive categories.
By matching our own data on the rights-related content of the world’s constitutions with quantitative indicators of actual human rights performance, we calculate numerical scores that capture the extent to which countries violate the rights pledged in their constitutions or, conversely, uphold more rights than their constitutions contain. These scores are then used to rank countries according to their constitutional “underperformance” or “overperformance.” Each country’s performance is further analyzed across three subcategories–namely, personal integrity rights, civil and political freedoms, and socioeconomic and group rights.
The resulting performance scores reveal a number of global trends in constitutional compliance. On average, socioeconomic and group rights are somewhat more likely to be violated than the other two categories of rights, but the performance gap among the categories is narrowing over time. Moreover, a country’s performance in one category tends to be only weakly correlated with its performance in other categories. Relatively few countries fail egregiously to uphold either the positive or the negative rights found in their constitutions. Meanwhile, considerable variation exists in the degree to which specific rights are upheld in practice, ranging from the mere sixteen percent of countries that uphold women’s economic rights to the eighty-seven percent that respect their constitutional prohibitions against arbitrary arrest and detention.
Constitutional compliance also exhibits strong geographical patterns. Countries in Africa and Asia tend to promise a wide range of rights in their constitutions but vary greatly in the degree to which they satisfy those self-imposed obligations, with the result that the two continents are home to a substantial majority of the world’s sham constitutions. These regional patterns persist, moreover, even if one controls for such variables as wealth and population size.
Finally, statistical analysis identifies a number of variables that tend to predict the degree to which countries underperform on their constitutional guarantees. In past decades, the mere inclusion of socioeconomic rights in a constitution was associated with underperformance, but no longer. Wealthy and strongly democratic countries are relatively more likely to uphold constitutional rights, whereas countries that are afflicted by civil war or promise a large number of rights are more likely to fall short. However, neither the existence of judicial review nor the ratification of human rights treaties is statistically associated with increased respect for constitutional rights. Likewise, we find no evidence that constitutional clauses that expressly limit the reach of various rights affect the extent to which those rights are actually upheld.
Number of Pages in PDF File: 95
Keywords: constitutions, sham constitutions, constitutionalism, socioeconomic rights, empirical constitutional studies
JEL Classification: H11, I18, I28, I31Accepted Paper Series
Date posted: January 23, 2012 ; Last revised: March 15, 2013
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