Rule of Law and Fundamental Rights

The international influence of American (or U.S. American) constitutionalism is indisputable. The innovative framework set by the Founding Fathers back in 1787 and the resilient organizations developed thereupon had such a positive impact overseas that they were still the leading global reference 200 years after the Philadelphia Convention. Institutions such as judicial review, federalism, or even presidentialism disseminated alongside American military sway across the most varied settings and soon became unavoidable elements to consider in state-building efforts worldwide. Be it in post-colonial Latin America throughout the nineteenth century, Asia and Western Europe in the aftermath of World War II, or the emerging African nations during the second half of the twentieth century; the United States of America was for a much extended period of time the dominant prototype of a successful constitutional arrangement. Though this once hegemonic influence has somewhat lost momentum within the past couple of decades, American legal institutions enjoy to this day remarkable prestige and continue to impact significantly other systems around the globe. American courts, for instance, are still often referred to as “the most powerful and admired judiciary in the world.” Not only do they still reach more international headlines than any of their colleagues overseas, but also, as cases brought before them continue to drive many aspects of the contemporary legal debate, American judicial decisions are followed closely by foreign legal academia. So, while the new “world favorite” of democratic constitutionalism—the Federal Republic of Germany—is still relatively young and in significant ways a result of its American counterpart, the legal system of the United States is of such tradition and status that even today it takes a great share of the attention from scholars and practitioners around the globe.

Within the last two decades German constitutionalism in general and the German Federal Constitutional Court (BVerfG) in particular have noticeably increased their influence as prototypes for legal systems worldwide. Despite the fact that neither constitutions nor a specialized constitutional jurisdiction are German inventions as such, in recent times several nations within and outside of Europe have turned their eyes into Germany. In an enormous range that includes countries in Western Europe, most of the former Eastern Bloc, as well as nations in Latin America, Asia, and Africa; for a time now the German Basic Law and the BVerfG as its “guardian” have clearly substituted their American counterparts as the “world’s leading model of democratic constitutionalism”. Surprisingly enough, however, in spite of the remarkable influence both of German legal institutions and German constitutional jurisprudence worldwide, there are still some important misconceptions—particularly among Hispano-American scholars—regarding the German system of constitutional review. These misunderstandings have not only impacted foreign academic work but also, unfortunately, they have had significant influence on policy making abroad. They relate, as one would have thought, to oversimplification; a deficiency that is not unusual among comparative legal studies. This way, for example, the existence of a specialized constitutional jurisdiction in Germany has led some scholars to assume that the BVerfG monopolizes the whole activity of constitutional judicial review. What is more, the presence of a specialized procedure through which individuals as such can further challenge ordinary courts’ judgments before the constitutional court—the so-called ‘constitutional complaint’ (Verfassungsbeschwerde)—frequently leads scholars to explain the division of duties between constitutional and ordinary courts as if it were given by the application, respectively, of constitutional or ordinary law. Finally, no less important, this specialized constitutional mechanism for individuals is often understood as if it were a ‘right’ in the strictest sense of the term, that is, as if its correct filing by an individual were sufficient to bind the constitutional court to admit the complaint and thus to solve the case on its merits. This somewhat romantic notion of the constitutional complaint has certainly contributed to strengthen the idea that the constitutional jurisdiction in Germany works as a “super jurisdiction of appeals”.

On July 14, 2011 the Mexican Supreme Court determined that all the courts in the country—regardless of their federal or local character—are entitled “to disapply the general norms that, in their opinion, are considered to be in violation of the human rights contained in the Federal Constitution and in the international treaties to which the Mexican State is a party.” This unusual decision introducing in Mexico the so-called “diffused” or decentralized constitutional review was reached by the Supreme Court within days after the enactment of a series of long-awaited constitutional amendments that aimed at a more effective enforcement of human rights in the country. Therefore, even though procedurally speaking it was more related to an international judgment issued two years before by the Inter-American Court of Human Rights on the case of Radilla-Pacheco v. Mexico, the Supreme Court’s decision was considered basically a follow-up to those longed constitutional changes. Correspondingly, its novel conclusions allowing any court to strike down unconstitutional and/or “unconventional” statutes were regarded almost unanimously as a favorable and thus welcome adjustment for human rights protection in Mexico. It was about time—many affirmed referring to the decision—for our legal system to treat local judges as “grown-ups”; for the Mexicans to be able to enforce their constitutional rights without having to rely on the outdated and highly complex constitutional writ of Amparo before the federal judiciary. With the inclusion of ordinary courts in constitutional scrutiny—legal scholars and practitioners rejoiced—the Supreme Court had taken a decisive step towards the decentralization of justice and the enforcement of fundamental rights in the country.

The question on whether the legal rules that make up a system of constitutional review—and thus the law as such—are a determinant of Rule-of-Law achievement in a country must be clearly answered with a ‘yes’. Cultural differences among legal systems are somewhat overrated as a source of explanation for Rule-of-Law failure. While this study does not exactly reach “beauty of diversity” conclusions like traditional comparative research usually does, the method followed to assess constitutional review arrangements in different legal systems—all of them with Rule-of-Law ambitions—allows making this critique objectively.