Partial Constitutional Codes

Abstract

Constitutions across the globe vary markedly in length and specificity. In drafting constitutions, constitution-makers thus face important choices of style, as well as substance: They can choose to adopt a highly “codified” or detailed approach to constitutional drafting, or rely on a more “framework”-style approach, which places greater reliance on sympathetic forms of legislative or judicial decision-making. The benefit of a codified approach, the article suggests, is that it provides a stronger constraint on judges to give indirect attention to the aims and understandings of the drafters, regardless of their legal or political ideology. The potential cost, however, is that almost any constitutional code will inevitably be incomplete as a constraint on judges; and for some judges, the mere attempt at constitutional codification by drafters may discourage the kind of sympathetic, purposive approach to interpretation necessary to fill relevant gaps. The article makes these arguments using case-studies from South Africa and India relating to the rights to property and freedom of expression.

Keywords: constitutional law, constitutional drafting, constitutional interpretation, South Africa, India, freedom of expression, property rights