Abstract

http://ssrn.com/abstract=1989979
 
 

Citations (1)



 


 



Sham Constitutions


David S. Law


Washington University in Saint Louis - School of Law; Washington University in Saint Louis - Department of Political Science; Program in Law and Public Affairs, Princeton University

Mila Versteeg


University of Virginia School of Law

July 1, 2013

101 California Law Review 863 (2013)
Washington University in St. Louis Legal Studies Research Paper No. 12-09-03
Virginia Public Law and Legal Theory Research Paper No. 2012-55

Abstract:     
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 less likely to be upheld than the other two varieties of rights, but the performance gap among the categories is narrowing over time. Moreover, a country’s performance in one category tends to only weakly correlate 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 12% compliance with torture prohibitions to 100% compliance with death penalty prohibitions.

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: 91

Keywords: constitutions, sham constitutions, constitutionalism, socioeconomic rights, empirical constitutional studies

JEL Classification: H11, I18, I28, I31

Accepted Paper Series





Download This Paper

Date posted: January 23, 2012 ; Last revised: July 1, 2013

Suggested Citation

Law, David S. and Versteeg, Mila, Sham Constitutions (July 1, 2013). 101 California Law Review 863 (2013); Washington University in St. Louis Legal Studies Research Paper No. 12-09-03; Virginia Public Law and Legal Theory Research Paper No. 2012-55. Available at SSRN: http://ssrn.com/abstract=1989979 or http://dx.doi.org/10.2139/ssrn.1989979

Contact Information

David S. Law (Contact Author)
Washington University in Saint Louis - School of Law ( email )
Campus Box 1120
St. Louis, MO 63130
United States
314-266-9698 (Phone)
314-935-5356 (Fax)
HOME PAGE: http://www.davidlaw.ca
Washington University in Saint Louis - Department of Political Science ( email )
One Brookings Drive
St. Louis, MO 63130
United States
Program in Law and Public Affairs, Princeton University ( email )
22 Chambers Street
Princeton, NJ 08544
United States
609-258-0162 (Phone)
Mila Versteeg
University of Virginia School of Law ( email )
580 Massie Road
Charlottesville, VA 22903
United States

Feedback to SSRN


Paper statistics
Abstract Views: 3,066
Downloads: 977
Download Rank: 11,809
Citations:  1

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo5 in 0.375 seconds