In this paper, we aim to survey representative constitutional amendments in the European Union’s (EU) area, whether attempted or accomplished, as well as significant adjudications by constitutional bodies. Then, we proceed to assess these legal phenomena in light of human rights jurisprudence. Pivotal reference in our work is the recently released 7th volume of the Annuaire international des droits de l’homme (Athens: Sakkoulas, December 2014), edited by G. Katrougalos, M. Figueiredo and P. Pararas under the aegis of the International Association of Constitutional Law. Not only does this volume comprise the work of some of Europe’s noted constitutionalists, it also addresses the constitutional matters central to this paper in light of human rights jurisprudence, which is the area of expertise of one of the paper’s authors, i.e. Ágúst Þór Árnason, and the area that the other author, Giorgio Baruchello, has construed axiologically as a pivotal instantiation of civil commons, i.e. “all social constructs which enable universal access to life goods”. Have European constitutions continued to function qua civil commons in the crisis years? That, at the deepest level of value scrutiny, is the question that our joint survey and analysis aim to answer.
These “laws” are the completion of an unusual and incremental constitutional process which has established a system whose foundations are to be found firstly in the acknowledged United Nations’ General Assembly Resolution adopted on November 29th, 1947 (providing the constitution of an Israeli state within the Palestinian region); and secondly, through the Declaration of Independence of the newly-born Israeli state, on May 14th 1948 after the failure of the British jurisdiction (ratified by the UK Parliament under the Palestine Act on April 29th, 1948).
According to Suzie Navot, the failure to draft a Charter to be approved by a Constitutional Assembly with effectiveness over ordinary laws was due to the opposition of Prime Minister David Ben-Gurion (rather than the concerns of a part of the Knesset, which considered the Torah as the only exclusive Constitution the Jewish people). In truth, no comprehensive constitutional process was ever deliberately set in motion. This was in order to avoid formulating over rigid principles which would ultimately create cultural divisions within the nation. Such concerns were exacerbated by the fact that the majority of the Jewish people had yet to re-enter the territories of the new state. The first Knesset ultimately approved a compromise (proposed by one of its members, the so-called Harari Resolution of June 13th, 1950), which certainly sets forth a unique precedent in comparative constitutional law. Indeed, the Knesset “decided not to decide” on the matter as it entrusted the Commission for Constitutional affairs and Justice with the task – on-going and with no deadlines – to draft one-by-one the “chapters” of the Constitution –i.e., the “basic laws”- which would then be approved one-by-one by the Knesset.
The 12 “basic laws” that have so far been ratified cover a large proportion of constitutional matters. These laws allow the author to organize the contents and themes of her work adopting a traditional ‘textbook’ approach. The book is both concise and comprehensive with reference first to historical origins followed by analysis of the fundamental principles of the system. The text then proceeds to discuss the powers of constitutional bodies, the sources of law, the form of government, the progressive judicial definition of fundamental rights and the mechanisms in place to protect them.
The unique character of certain institutions certainly demands the attention of comparative constitutional scholars. The very foundation of the Israeli system is to be found in the institutional framework of the British Common Law, as at the end of WWI, after the fall of the Ottoman Empire, the League of Nations granted Great Britain a mandate for Palestine. Indeed, since its very beginning, the government of the Israeli State has reproduced the so-called Westminster parliamentary system. This was except for a brief time-lapse (1996-2001) in which great political instability led (with unsettling results) to an unusual strengthening of the office of prime minister. The consolidation of the post was achieved through direct election simultaneous with the election of the representative Chamber by means of two separate ballot papers (however, even in this phase, the prime minister remained subject to a vote of no-confidence by the majority of the Parliament and, provided presidential approval could be obtained, retained the power to dissolve the Knesset).
Professor Navot provides a deeper assessment which covers the recent development of a strong “judicial activism”. This trend has gradually led to the abandonment of the formalistic approach derived from English law (even though under stare decisis lower courts are still bound by higher courts), in favour of a stronger “Americanisation” of the system. As the author highlights, this development can mainly be attributed to the contribution of the Israeli Supreme Court through its “judicial review” over ordinary legislation. It is above all this process which has led to the establishment of a genuine judicial Bill of Rights (exceedingly important is the acknowledgment of the principle of equality along with other fundamental rights, e.g. freedom of speech, not even included in the “basic laws” of 1992, but however implied in the recognition of the value of human dignity).
The above-mentioned Harari Resolution left unsettled the question of the position, within the sources of law, of the “basic laws” adopted by the Knesset using a regular legislative procedure, however, the dominant opinion, endorsed by the jurisprudence of the Supreme Court, is that such laws limit the legislative authority of the Parliament. Indeed, it is worth remembering the 1995 Supreme Court decision, Hamizrahi Bank v Migdal. This decision followed the 1992 adoption (which the Supreme Court President Aharon Barak considered a “constitutional revolution”) of two important basic laws concerning human rights. For the first time in a judicial review case an Israeli supreme judge stated the principle that if an ordinary law is in contrast with an inalienable right acknowledged by a “basic law”, the former is to be considered invalid. This applied notwithstanding the formal fact that the latter was approved by a mere absolute majority of the Knesset, which has both legislative power and constitutional authority. Suzie Navot’s conclusion (p. 36) is that, following the US example in Marbury v Madison, even without an explicit constitutional mandate, the Israeli Court considered itself in a position to judge whether legislation is in compliance with the contents of the “basic laws”.
Certainly, the most stimulating part of the book is Navot’s interpretation of the political and social reasons for the current obstacles to the approval of a Constitution for Israel. This is for reasons that the author believes lie in the enduring disagreement on the compatibility of the “democratic values” gradually emerging from the “basic laws” and the “Jewish State”. In other words it refers to the “natural right of the Jewish people to be, as any other people, independent in [their] own sovereign state” and reflects the nation’s right of self-determination ratified in the declaration of independence of 1948, but already acknowledged in Palestine’s partition plan approved by the United Nations in 1947. The balance between the two, potentially opposite, principles of this nation is very complex and, according to Navot (p. 73), depends on the notion of the “Jewish State” which sometimes refers simply to the majority of the people, whereas at other times refers to the right of political self-determination of the Jewish nation, and yet others it is used to highlight the peculiar religious features of the law.
However, on this latter point, the Court of Justice (3872/93 Mitral v. The Prime Minister and the Religious Affairs Minister) specified that the notion of “Jewish State” does not contemplate the possibility to approve “religious laws” (given the mandatory right that citizen must enjoy religious freedom as well as “freedom from religion”) and that in any case, it is necessary that the legal system establish a balanced trade-off between potentially threatened religious sentiment and other concerned rights. For instance, it may involve balancing religious freedom threatened by the presence of butcher’s shops selling pork and the freedom of establishment for those engaged in the business of selling food products (953/01 Solodkin v. Bet Shemesh Municipality).
Furthermore, the legal position of non-Jewish citizens (i.e., Arabic) and of orthodox or super-orthodox Jews in achieving substantial equality and equal treatment still remains only partly guaranteed. This is true notwithstanding the judgments endorsing the widest political participation together with the pre-eminent value of the standing electorate’s rights (for example, in the 2003 Tibi case the Supreme Court annulled the provision of the central election committee which excluded from political elections two Israeli-Arab candidates. It found that their political manifesto, even if it was in conflict with the Jewish nature of Israel, it did not lead to the destruction of the State, but rather called for a system for an all inclusive state).
It is not easy to anticipate the evolution of the Israeli constitutional system. According to the author, “in the second decade of the 21st century, the completion of the Israeli constitution still seems unrealistic”. This acknowledges the persistent conflict within political institutions and civil society on fundamental questions, such as human rights, and, in particular, minority rights.
Can we conclude that today Israel has a complete Constitution? In respect to this crucial question Professor Navot expresses some doubts. While it is true, on the one hand, that the “chapters” written so far regulate large parts of the system, comparable to other written Constitutions of democratic States (p. 45) on the other, the current framework still appears “weak” and “unstable” lacking wide consensus on crucial issues. In consequence, it would be very difficult, at least for now, to be able to collect and entrench the “basic laws” in one single constitutional document. Finally, the complexity of many of these unanswered questions is depicted symbolically in the striking multi-coloured cover illustration of the book by the artist Putachad Leyland.
The indications are that the costs are 44% of Iceland’s GDP, meaning that it is internationally the third costliest financial collapse ever (Luc Laeven og Fabian Valencia. 2013. Systemic Banking Crises Database. IMF Economic Review, 61, pp. 225-270). The series of events leading to the collapse and what has happened afterwards has had serious consequences for Icelandic society and government. The most obvious sign of these consequences is that trust levels within Icelandic society have declined. The banks enjoy least trust of all Icelandic institutions, as is to be expected, as only 10.2% of Icelanders said in October 2014, six years after the financial collapse, that they trust Icelandic banks (MMR Market and Media Research). Just 12.8% trust Alþingi, the Icelandic Parliament, according to the same source.
One of the consequences of the financial collapse was that in 2009 the Icelandic republic had the first left-wing government in its history, i.e. since it was established in 1944. This government had to deal with all the most serious consequences of the financial collapse. On top of that, it tried to engineer changes to important Icelandic social institutions like the fishing quota system, which has been controversial since its inception in 1983, and the Icelandic constitution. The reasons behind the changes to the quota system were based on justice and fair allocation of natural resources. The reasons behind changing the constitution were not as clear, but it seems to me that the best construal of them is that the attempt to change the constitution was a confidence-building measure, an attempt to reconstruct the most important legal document of the republic´s legal system and secure general trust in governmental institutions. According to the same survey firm as referred to above, the legal system as a whole enjoyed the trust of 28.9% last November, but in November 2013 the same measurement was 38.1% and in October 2009 the trust in the legal system as a whole in Iceland was 36.5%. There is no reason to read too deep a meaning into these measurements, but they are some indication that the preparation, writing and rejection of the draft constitution have not affected public trust in the legal system. Some may think that we can infer from this that the whole affair surrounding the drafting of a new constitution was in vain. But this may be too hasty.
What actually happened in this process? First, there were public protests against the sitting government ending in its fall in early 2009. Second, after the general election in 2009, the first left-wing government in the history of the Icelandic republic was established. The prime minister of that government had long been of the opinion that the constitution needed revision. Third, some general meetings were arranged early in 2009, trying to find out which were the most important values of Icelanders. The government organised a similar meeting in early 2010 to figure out those values that should govern the revision of the constitution. Fourth, the government established a committee gathering data and evaluating various ideas about such a revision, thus preparing the work of a constitutional assembly. Fifth, the government decided that an assembly should be elected by the general public to write a new constitution or revise parts of the existing one. Sixth, the election to the constitutional assembly was declared null and void by the Icelandic Supreme Court after a legal challenge. The government decided then to establish a constitutional committee with the same mission and the same individuals as voted onto the assembly. Seventh, the constitutional committee delivered in four months a draft of a new constitution. This draft was never assented to twice by the majority parliament with a general election in between, as it must do according to the rules laid down by the present constitution.
This book is a collection of essays in Icelandic about this whole process and other democratic experiments in Iceland’s recent years. It is written by two Icelandic authors and six international authorities on democracy and democratic developments. Jón Ólafsson edits the book and writes an introduction describing the development of the constitutional project and other democratic experiments in Iceland. James Fishkin analyses some of the processes that took place in the constitutional preparation and the drafting of the new one, and he evaluates to what extent deliberation and rational discussion were features of them. His conclusion is that neither the general meetings nor the constitutional committee reflected the general population and we should be careful about drawing any conclusion about the views of the meetings and the committee coinciding with the views of the population as a whole. He is also critical of the lack of rational discussion both in the preparations and the drafting of the new constitution.
Hélène Landemore examines the process of preparing and writing a new constitution in Iceland from an epistemological point of view. She is interested in: how the constitutional committee dealt with the problem of writing a constitution; and how it used “crowdsourcing”, meaning the competence and the intelligence of the general public, especially in writing the draft of the new constitution. She is critical of the role of experts in writing and editing the draft of the new constitution; she believes that the process had serious drawbacks, as she thinks that the general public and its representatives are capable of writing a constitution upon the condition that as many as possible take part in the process. She believes that the current Icelandic method for establishing a change to the present constitution or adopting a new one is too restrictive. Tom Ginsburg and Zachary Elkins approach the preparations and process of writing the draft of the new Icelandic constitution from a comparative point of view. They review various views of transparency in such a process, as well as the role of experts. They are, like the other experts writing in this book, favourable to the opening up of the process for preparing and writing a constitution and the government process in general, but they realise that there is no simple solution or simple recipe for a constitutional process, in Iceland or anywhere else. Thus, they ask the difficult question: If the new constitution was the result of a grassroots movement, why was it so easy to stop it in parliament? Why were those parties that opposed the new constitution elected as the new parliamentary majority in 2013? There is no simple answer to that question and there are two appendices to their article that are informative and interesting.
Paolo Spade and Giovanni Allegretti write about novelties in democracy or new initiatives in democracy, especially participatory financial budgeting as practised in a number of Brazilian cities. They explore the connection between these new initiatives and the new possibilities that have opened up on the net. They realise that these connections are complex and they can easily become counterproductive from the point of view of participation, if not used carefully. Democratic experiments in other places are drawn into the discussion such as Portugal, Germany and the United States, and in Reykjavík, Iceland. This is not directly relevant to the process around the constitution but the discussion broadens the picture of new initiatives in democracy. The last article is by Kristinn Már Ársælsson and is an overview of democratic initiatives in Iceland in the years 2009-2013, i.e. the years of the first left-wing government of the Icelandic republic. These include the preparation and the writing of the draft constitution, plus two national referenda on the Icesave agreements between the Icelandic government and the British and Dutch governments. These referenda were engineered by the refusal of the Icelandic president to sign two laws supported by the majority of parliament. In both cases the general public voted against these laws. These were the first national referenda since 1944, when it was decided to establish a republic. He also discusses the initiatives taken by the city council in Reykjavík.
All these articles are interesting, make important points and throw light on the events that have taken place in Iceland in the last five years. This is of particular value for a small society like Iceland, because very few people outside the country can understand what happens here and why. Icelandic scientists are a part of their own society and sometimes find it difficult to analyse what actually happens. The critical distance of foreign scientists can bring benefits.
This distance has its drawbacks too. This is clear from the discussion of the constitutional process. There is no attempt to relate it to the political culture in Iceland. What is most interesting about this process, which elected a constitutional assembly from members of the general public, is also a major break with the Icelandic tradition of politicians and legal experts discussing and drafting changes to the constitution. Part of this tradition is that all the major parties have had to agree to the changes put forward. Even though this is not literally true of all the changes proposed, it is true of most of them. This has guaranteed that the changes proposed and consented to in parliament before it is resolved, are consented too unchanged in the newly elected parliament. This threshold to changes to the constitution has not proved to be serious or impossible in the Icelandic context. Changes have regularly been made to the Icelandic constitution. It is not fashionable nowadays to take Icelandic political culture seriously, since its vices rather than its virtues have been more prominent in recent years, but it seems to me that one of the reasons working against the new constitution was that there were serious political disagreements about it. Pushing it through parliament would have been a serious break with the national consensus tradition. You may not think very much of this tradition, but it is an historical fact; besides, traditions in political cultures have to be reckoned with.
The book is clearly organised, with a solid theoretical account of constitutional judicial review filling around the first half. Kári defines his study thus:
The term Constitutional Judicial Review implies an action with three components. First, the review is based on a superior legal norm – constitutional – the archetype being a written Constitution. Second, the review is performed by an independent forum – judicial – the archetype being a Supreme Court. Third, an action of evaluation – review – the archetype being (considering) invalidation of a statutory law (37).
The second half of the book shows this theory in action in the Courts of the selected legal systems and demonstrates the evolution of constitutional judicial review in the West Nordic countries from something that once seemed at best foreign, and at worst laughable, to a feature, albeit still peripheral, of West Nordic law (326). Kári’s account is no simple recollection of cases but situates the legal developments in their unique historical contexts – something essential to any understanding of law, but especially comparative law. However, he also demonstrates wider scholarly foundations beyond the Nordic systems, in particular, an influence of common law legal theory (not least by virtue of his methodology of study – an examination of case law!).
One controversial premise lies at the heart of Kári’s account: that the West-Nordics are “quasi-federal” owing to the influence on their Supreme Courts of the law and judgments of the European Union (EU) (notwithstanding that of the countries studied, only the Danish mainland is inside the EU) and the European Convention of Human Rights and its Court in Strasbourg (46). This view might not be readily accepted – or readily acceptable – to constitutional scholars in the Nordic States, or even be widely admitted by the EU institutions and European Court of Human Rights themselves, but in any case, Kári demonstrates the undeniable influence of the supra-national European Courts on constitutional interpretation in the West-Nordics. If any criticism can be levied at the book itself, they are of a formal nature: in places the editing is wanting and the index is rather thin. The case list is very clear but could have been strengthened by a bibliography of scholars cited, especially given the perfunctory referencing system.
Comparative law is much neglected in West-Nordic legal education – as in most legal traditions – though the reasons for this in the West-Nordic schools are perhaps different: one traditionally learns “the laws” (of the realm) rather than “law” (as an academic discipline) (324). This leads to complacency. Law students are not encouraged to question the law: the law “just is”. An excess of critical thinking is frowned upon. But this comparative study – as comparative law more widely – forces the readers to rethink their legal techniques and revisit their pre-judgments. There is nothing natural or inherent about any particular legal process, let alone any specific legal rules. Law is a product of historical developments as Kári’s study shows, and, most importantly, a product of choice. “Law does not just happen.” This is not widely (enough) recognised in the Nordic legal tradition where law is often viewed as something passed down from generation to generation like some great immutable tablets of stone (73). Thus, by studying other systems, one learns not only those systems but one learns one’s own system better. Most importantly, one understands law better. Zweigert and Kötz have long argued:
It may indeed be that the mere interpretation of positive rules of law in the way traditionally practised by lawyers does not deserve to be called a science at all, whether intellectual or social. Perhaps legal studies only become truly scientific when they rise above the actual rules of any national system, as happens in legal philosophy, legal history, the sociology of law, and comparative law.
For that reason alone, Kári’s text should be standard reading for all constitutional scholars in the Nordic States, whether they call their field law or political science. This is nowhere more necessary than in those regimes considering radical constitutional reform, such as Greenland, the Faroe Islands and Iceland (though the latter appears to have quietened its calls for wholesale constitutional revision in recent months). But what Kári shows is that irrespective of grand national debates about formal constitutional amendments, constitutional reform is always going on; it is a continuous process. Indeed, Kári cautions against undue reliance on the legislature to maintain the contemporary relevance and aptness of law instead arguing that democracies need active Courts to bring an end to “uncommonly silly” laws (339-40).
Beyond this small corner in the North Atlantic, West-Nordic Constitutional Judicial Review is a welcome contribution to scholars of constitutional comparative law. Most English-language comparative law lumps the Nordic systems in with the Germanic systems – if, indeed, the literature refers to them at all. This may be a result of language barriers and a general want of competence in “skandinavísku” outside the region but this book unlocks that World to the English speaker. With that in mind, it is only a shame that it does not extend to Finland! The Nordic systems, as aptly demonstrated by Kári’s case selection and analysis, are neither simply civil law nor common law but of their own kind and it is time they received this attention.
On 14th February 2015, Kári á Rógvi passed away after a short illness. Kári will be sorely missed by the legal communities in the Nordic Countries, not least in the Faroe Islands where he was a leading light in constitutional reform and Professor of Law at the University of the Faroe Islands. This review was written before these sad events and has not been influenced by them but Kári had an opportunity to read it in draft and was aware of the significance of his original contribution to comparative constitutional law in the Nordic countries. Kári, 41, is survived by his beloved wife, Johanna, and three children, Bragi, Brest and Bryndís. The editorial staff and the reviewer extend their sincere condolences to his family.
On the contrary, the ruling political coalitions in the 1980s, centered on the two-prongs of the Christian Democracy and the Socialist parties, got rid of every sense of measure in spoiling public resources and making recourse to inflation and public debt – which, in those years, rocketed from a normal 60% of GNP to more than 100% (so that we, our daughters and sons, and a host of unpredictable future generations are, and will be, paying dearly for the glorious “statemanship” of those years). 1992 marked a turning-point for the old political establishment: the “Mani pulite” (“Clean Hands”) trials, filed by independent public prosecutors in front of an independent judiciary sent a lot of politicians and fellow transactors and businessmen into jail, and even a former prime minister, acclaimed by somebody as one of the greatest Italian politicians of the XXth century, flew abroad to avoid prosecution. After a while, however, old politicians found a way for taking advantage of the wise advice of Fabrizio, the beloved nephew of Prince Salina (“It is necessary that everything does change for everything to stay as usual”). This way was the founding of a new political party by an influential businessman. This businessman won three elections in the last fifteen-years, qualifying as a perfect demagogue (his party is being defined by his followers as a “charismatic party”), and putting his own private interests on the top of governement and parliamentary agendas. The public sphere deteriorated heavily in those years, and is still deteriorating, for the demagogue and his allies proceeded systematically to turn politics from a civil, though sometimes tough, confrontation of opinions among rival parties into a war against internal enemies, while at the same time undermining the foundations of the Republican Constitution.
In such a situation, the selection of eight writings and seventeen letters by Thomas Jefferson translated, edited, and clearly introduced by Alberto Giordano may indeed provide a sample of an ideal, good, politician, to be used as a standard for criticism and improvement in the Italian political life. For instance, Jefferson upheld free public education for all, as a way to provide future citizens with the learning necessary to control politicians and protect democracy; he opposed public debt, arguing that present generations have not the right to bind future generations to pay for it; he opposed religious “fanaticism”, we would now say “foundamentalism”, as one of the most serious dangers for a democracy, while upholding religious freedom and toleration, provided religion is properly considered as a private business of each believer.
Italians should take the Jefferson model, however, with two caveats.
To begin with, Jefferson supported a few, quite unpalatable, views, even for XVIIIth century standards: think about slavery (he was not an uncompromised abolitionist), women (their proper place is home and family management), and native Americans (to be civilized under the protectoship of wasps). But this is a minor drawback, from our point of view and the way society and culture have evolved in the meantime.
Furthermore – a point I consider the most serious flaw in Jefferson’s political thought – he deemed democracy to be capable, by itself, to protect and guarantee to citizens the individual rights he wisely wanted to be ascribed to them in a constitutional Bill of Rights. On this path, we cannot follow him (though we may appreciate his romantic idea of a democracy made up by small businessmen, small farmers, and small manufacturers, with a small government to decide upon). Nay, democracy by itself is prone to become the prey and toy of demagogues; and only a firmly established constitutional democracy, endowed with a sovereign constitution and judicial review, like the one Madison and Marshall cherished, can do the tremendously important trick of a serious protection of individual rights against abusing majorities and the interest-groups pulling its wires. So, to conclude: welcome to Jefferson’s essays, but, as Don Ferrante suggests, con juicio. The book also contains a learned “Preface” by Dino Cofrancesco, where the most recent essays on Jefferson are analyzed and discussed.