The Comparative Structure and Scope of Constitutional Rights
RESEARCH HANDBOOK IN COMPARATIVE CONSTITUTIONAL LAW, Rosalind Dixon, Tom Ginsburg, eds., 2011
43 Pages Posted: 9 Aug 2010 Last revised: 3 Sep 2010
Date Written: August 9, 2010
This essay surveys, analyzes, and evaluates recent scholarship on issues falling within the general topic of the comparative structure of constitutional rights. It begins by explaining the generality and unity of the topic because this is not (yet) a widely recognized sub-field of comparative constitutional rights jurisprudence and also because issues of constitutional structure are typically categorized as separate and distinct from issues of rights. The essay argues that within comparative constitutional law, it is particularly helpful to distinguish the structure of constitutional rights from their substance. The latter concerns the content and parameters of particular rights that exist in a given constitutional system. By contrast, the structure is the underlying framework – set of concepts, principles, doctrines, and institutions – that applies to, organizes, and characterizes constitutional rights analysis as a whole within that system.
The essay illustrates that some of the most interesting and important comparative rights issues are structural in nature by discussing three of them. First, to what extent do general conceptions of a constitutional right – what you have in virtue of having a right – and of limits on such rights differ among contemporary systems of constitutional law? Are there perhaps mostly common conceptions of both? Second, what is the comparative scope of constitutional rights? Given the subjects or beneficiaries of constitutional rights, who or what are their objects? What types of law are governed by constitutional rights, which governmental and non-governmental actors do they bind, and what is their impact in the “private sphere”? Third, in what ways and to what extent do contemporary constitutional systems recognize positive constitutional rights of various types as well as negative ones?
The concluding part of the essay is a plea for sub-dividing the field of comparative constitutional rights jurisprudence into its two components of structure and substance. Because protection of basic rights has been a central driving force behind the tremendous growth of constitutionalism and judicial review around the world, the greater range and refinement of analytical and explanatory tools that may result would seem to justify the enterprise. If, for example, it turns out that the structure of constitutional rights tends to be more similar than their content across constitutional systems, this would be an important finding calling for explanation and leading to a deepened understanding of comparative constitutional rights as a whole.
Keywords: comparative constitutional law, constitutional rights, limits on rights, horizontal effect, social and economic rights, postive rights
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