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Abortion


Abortion rights have been the most hotly-contested of all the new civil rights in the post-war era. Abortion, though regarded with horror by a majority of religious faiths and denominations, was not generally made a criminal offence in most jurisdictions until the 19th century, in part because it was so dangerous to the health of a woman that, before the advent of modern medicine, it hardly presented a serious threat to the prevailing moralities. Given that recourse to abortion has not been something lightly undertaken, except in those countries which, like the USSR from 1920, both made it legal on demand and provided free facilities, the actual effect of criminalizing it was largely to drive women into the great risks of illegal abortion by medically-unqualified ‘back-street’ abortionists. Partly to alleviate these risks, and partly because the increasing secularization of modern society removed the religious objection for many people, most Western societies began to liberalize their abortion laws from the 1960s onward. Nowhere has this move been uncontroversial, and in some countries, especially the USA, major and continuing political conflict has followed the initial and usually very restrictive decriminalization of abortion. Some countries, most notably the Republic of Ireland and Germany, have not followed the trend to legalize abortion. The Irish ban on abortion is almost complete as a result of the continuing enormous political influence of the Roman Catholic Church in that country, though the same church has not been able to prevent the legalization of abortion in Italy. The German Constitutional Court’s repeated striking down of legislative attempts to legalize abortion is the only example, to date, of a country where such action has been taken on the grounds that abortion is forbidden by its equivalent of a bill of rights. This has produced serious problems since the 1990s because, following the Soviet precedent, abortion on demand had been legal in the German Democratic Republic (East Germany) between the end of the Second World War and German re-unification in 1990.


In countries where a justiciable bill of rights exists, abortion has inevitably become a matter for intense legal conflict, because such lists of rights almost inevitably contain, explicitly or by implication, two core values which conflict in the case of abortion; there is, at the same time, a form of a right to life applicable to the foetus, and also some version of a right to privacy, to self-determination or to the inviolability of the person on the part of the mother. Thus courts have been forced into choosing between irreconcilable values, often because legislatures, inheriting 19th-century legislation, have shirked the electorally risky business of deciding whether or not to repeal them. Where courts have had to make rulings, as, for example, in the USA in the famous case of Roe v. Wade (1973) or in Canada in Morgentaler v. The Queen (1988), the resulting legal entitlements to abortion have usually rested insecurely on confused and inadequate rulings. There is probably no country where abortion is effectively absolutely forbidden on any ground at all, including that of saving a woman’s life, and the actual debate over abortion rights is really about the extent to which, and the reasons for which, abortions may be controlled by the state. While countries vary widely in their legislation, there are common fundamental issues. These questions concern the stage of pregnancy at which the state may impose controls in the interests of the woman’s health, the stage at which a foetus becomes viable, most intensely focusing on the issue of the right to life, and also whether or not the doctor has a duty to counsel against abortion on the grounds either of morality or of the woman’s psychological health. The Roe v. Wade rules, while not particularly typical, stand as a good example of the sorts of compromises made between competing moral and medical arguments. Under Roe v. Wade a state may not prohibit abortion at all during the first three months of pregnancy, while during the second three months some restrictions may be placed in the interest of the woman’s health. In the final three months, however, the state may prohibit abortions on the grounds of the right to life of the foetus, although some restrictions remain to allow for the protection of the mother’s life.


Much of the politics, including the judicial politic, regarding abortion is highly symbolic. Even in Germany, the ban on abortion is of this nature; there and elsewhere, constraints tend to be not only about the conditions under which abortion may be permitted, but also the exact way in which the legal system will characterize abortion. Germany, for example, insists on continuing to regard abortion as a crime, but one which will not usually be punished. Elsewhere, Spain being a good example, constitutional courts have placed the right to abortion under quite restrictive conditions, often because it was politically possible neither to ban it completely nor simply to permit it.


The problem abortion presents for constitutional law in many countries is that, while women’s rights to control over their bodies has to be inferred from rather vague constitutional guarantees of autonomy or privacy, the right to life is usually much more clearly written down. Thus, if a foetus is to be regarded as ‘alive’, abortion becomes a question of balancing two rights against each other, and not a simple question of whether the state can control a woman’s pregnancy. Extremely subtle doctrinal arguments have been made, one of the most complex being in Hungary, to establish both that the state must protect all life, including in some sense foetal life, but to ‘balance’ this against women’s rights. Inevitably these compromises satisfy no one. One specific problem, which the USA is beginning to have to face, is that legal solutions to the abortion problem cast in terms of the viability of the foetus become increasingly less satisfactory as medial science pushes that viability earlier and earlier into pregnancy. Abortion, however, is rapidly coming to be only one of a series of related biological rights problems, as issues such as cloning, surrogate motherhood, artificial insemination and all forms of research involving human embryos become the subject of state regulation.


Abstract review


There exists a variety of different forms of judicial review, that is, ways in which constitutional courts can vet legislation for compatibility with the constitution or bill of rights in a political system. Perhaps the most frequent form outside the common law jurisdictions is that known as abstract review. Under this system a statute is sent to the court for an opinion as to whether or not it is constitutional, taken simply as a text, with no reference to any specific factual situation, and not as a result of a reference from an ordinary court in the process of hearing an actual piece of litigation. For this reason it is also often known as ‘a priori review’. This form of review is therefore triggered not by an individual making a claim against the government, but through some sort of constitutional entitlement for a group or entity to refer the statute in question directly to the court. Usually the referrer is either another constitutional body, the President of one of the legislative assemblies, for example, or a state government in a federal system. Often the right is granted to some minimum number of legislators acting together. In France, for example, statutes can be referred by the presidents of both the National Assembly and the Senate, but also by any group of 60 deputies or senators. Where such a group of legislators can make the reference the process of judicial review often takes the form of a last ditch struggle by the parliamentary opposition which, having lost in all the legislative battles have a final attempt to de-rail government policy before the act comes into force. This aspect has brought abstract review into some degree of disrepute in the eyes of many political analysts, on the grounds that it ‘judicializes’ politics.


Judges themselves tend to dislike being restricted to abstract review. Certainly successive Presidents of the French Conseil constitutionnel have campaigned for a change in their powers to allow ‘concrete review’. The problem is that it is much harder to make a decision in these abstract terms, remote from the sort of factual situation that a court can consider in ordinary legislation. It calls for a type of jurisprudence which must imagine all the things that might go wrong in the application of a statute. The consequence is that courts are forced to act on assumptions about what the executive will actually do, and try to craft a constitutional judgment to account for this. The tendency is therefore either to be too critical of legislation, because one has to protect against an executive acting in bad faith, or too lax, because one takes the view that executives will only apply the legislation in the way most likely to be compatible with constitutional provisions. Both tendencies have their risks. To minimize this some courts, including the powerful German Constitutional Court, make use of a method by which a form of conditional approval is given: the court attaches, as it were, an interpretative note, saying that the act is constitutional only so long as some section is interpreted to mean some specific thing. This is also attacked by critics of judicial review on the grounds that it is tantamount to the court acting as a legislature itself. Abstract review is virtually unknown in the common law world, where the view has always been held that courts should never give answers to hypothetical questions, although the Canadian Supreme Court has the duty, which it much dislikes, of answering such a hypothetical question if posed by the government. One reason the constitutional courts of code law countries do have the power of abstract review, and sometimes only that power, is because they are intentionally cut free from the ordinary courts, and are not seen as appeal courts in the usual sense. Thus, unless lower courts choose to send issues to the constitutional court, they could well be bereft of the chance to make law. The other main reason lies in a different attitude to the role of constitutions altogether. Many of the constitutional courts with abstract review powers exist in political systems where the idea of the constitution is less that of a procedural check on executive and legislative power, than of a living moral code meant to shape the whole society. Such courts, whether in Germany or, for example, Eastern Europe, were often created in the aftermath of revolutionary change.


Administrative law


Many countries provide separate legal systems for handling non-criminal conflicts between citizens and the state, which are usually called systems of administrative law. Even where, as in the United Kingdom, there is no formally separate system, a functional division is likely to exist, with judges specializing in such conflicts, and with the development of special procedures and legal doctrines. At one time the dominant thinking in the UK was that administrative law should not be a separate system, because there would actually be less control over the executive if public bodies were not subjected to the same controls as all other citizens through the common law. This view, associated with A. V. Dicey, held that European societies were executive-dominated because the administrative law system allowed public servants to hide from the scrutiny of truly independent courts. It has largely been discredited, at least in part because the UK found it necessary to develop de facto, if not de jure, administrative law courts of its own. Administrative law is characterized by a very strong insistence that all acts of public officials be clearly intra vires, fully authorized by a legitimate rule or statute. Administrative law seldom goes beyond that, because the courts in question are expressly not authorized to challenge the legitimacy of the authorizing legislation itself. Thus in countries such as Germany and Italy, and, in a different way, France, which have both administrative law and constitutional law, questions of the validity of the authorizing laws are strictly reserved to the constitutional courts. There are other doctrines, sometimes very powerful ones, used in European administrative law which, unlike the basic intra vires test, have no clear counterpart in common law jurisdictions. Two of the more important doctrines are those governing misuse of power, best known by its French label of détournement de pouvoir, and the concept of proportionality in administrative action. Misuse of power here means using an acknowledged legitimate power for ends that were not intended by the legislature, while proportionality means that no more far-reaching administrative action is justified than is minimally necessary to achieve the legitimate aims of the legislation authorizing the actions. This latter doctrine is beginning to be accepted into common law jurisdictions, especially in Canada and, to a lesser extent, in the UK. (Though many English lawyers would argue that the UK doctrine of Wednesbury unreasonableness was already doing all that the European doctrines sought to do.) As the European Court of Justice (ECJ) develops increasing power, and hears more and more appeals from citizens of member states under the Article 177 proceedings (now Article 234), something like a European administrative or public law system is developing, helped by the fact that the ECJ has incorporated the European Convention on Human Rights directly into European Union law. The distinction between administrative and constitutional law has never been an easy one, and constitutional courts cannot be expected to withdraw their attention from issues which come up under the former label. The problem is particularly acute in the new Central and East European post-communist transition democracies. There, the constitutional courts are new bodies staffed with judges of impeccable democratic credentials, while all the other courts, including administrative courts, are often still highly executive minded and both lacking the experience, and unwilling, to hold the state to high standards of respect for rights.


Affirmative action


Once the need to provide legal recourse against discrimination became widely accepted in Western societies, from about the mid-1950s onwards, a new problem occurred. How far, and in what ways, could a state take positive action to remedy the consequence of past discrimination and inequalities? Policies intended to make up for a history of discrimination, for example, the setting aside of places in educational institutions for people of particular backgrounds, came to be known as positive discrimination, or affirmative action. There are, inevitably, philosophical, and therefore legal, problems associated with affirmative action. For example, a state might want to remedy past discrimination against racial minorities in access to higher education by having a minimum quota of places which must be filled by members of such a minority. The result might be that some members of this minority were accepted instead of more qualified members of the dominant racial group, which could itself constitute racial discrimination; in a classic case on these lines in 1978 (Bakke v. Regents of the University of California) the US Supreme Court ruled that such direct quotas were discriminatory. So complicated is the issue, however, that Bakke has long been seen as one of the least satisfactory and least clear of all pronouncements in civil rights law. In general, affirmative action has come to take the form of making special efforts to recruit the disadvantaged, or to train them to increase their chances of succeeding in direct competition with others, rather than directly giving them easier access to jobs or educational places. (See also quotas.) In 2003 the US Supreme Court revisited this issue at a time when increasing public dissatisfaction with the effects of affirmative action, and a conservative government in Washington, led many to expect the ruling to curtail even measures which were thought to be unaffected by the Bakke decision. Bakke had allowed some engineering of admissions in pursuit of socio-economic diversity, a goal which has been accepted largely without argument as valid and not constitutionally forbidden. This much was confirmed by the new decision, but any further move towards quotas intended to remedy past injustice was again stopped.


African Charter on Human and People’s Rights


The Charter was issued by the Organization of African Unity (OAU—now the African Union) in 1981, and entered into force in 1986. It took its emphases from the OAU’s own Charter, the United Nations (UN) Charter and the UN Universal Declaration of Human Rights. The African charter is one of a series of regional human rights documents encouraged by the UN as part of a general strategy for enforcing human rights world-wide, the most effective of which is the European Convention on Human Rights. Although the very universality of the original UN Charter implies that human rights are generally valid, there is an acceptance that regional world cultures may evaluate, and even partially define, such rights in different ways. The specific thrust of the Charter of the OAU was to bring its commitment to ‘eradicate all forms of colonialism from Africa’ to bear on the definition and support for human rights. Thus the enumeration of rights, though not very different in detail from what one would find in any classic listing, was set against a background which recognized two points missing in, for example, the European Convention. First, some tension seemed to be recognized, though it was posited to be a fruitful tension, between people’s rights and individual human rights. The Preamble recognized that: ‘fundamental human rights stem from the attributes of human beings, which justified their international protection and on the other hand, that the reality and respect of peoples’ rights should necessarily guarantee human rights …’, and: ‘… that it is henceforth essential to pay particular attention to the right to development and that civil and political rights cannot be dissociated from economic, social and cultural rights in their conception as well as universality and that the satisfaction of economic, social and cultural rights is a guarantee for the enjoyment of civil and political rights …’


The problem at the heart of drafting a document on human rights in a context like that of the OAU was the paradox of whether the ‘niceties’ of liberal democracy can be afforded where there is a massive political and economic problem of nation-building and an urgent socio-economic struggle for development. The language used was an attempt to bring together two very different traditions: the individualistic European-style promotion of traditional human rights as the very basis for a successful political system, and a radical perspective which sees such rights as the consequence of a functioning, just, economic substructure. There is the additional problem that the individualistic European approach stems from the European context, whereas the whole emphasis of a body like the OAU was anti-colonialist and committed, as the Preamble declares, to the ‘historical tradition and values of African civilization which should inspire and characterize their reflection on the concept of human and people’s rights’.


Outside the Preamble there was less mention of specifically African issues, except for the unusually emphatic statements on matters like the universal ban on slavery (Article 5), but there were still distinctive features. Chapter 1, entitled Human and People’s Rights, outlined a general statement of rights, amounting to a denunciation of oppression, apartheid and colonialism, but containing wording which would sit uneasily with the judges of the European Court of Human Rights. Traditional rights to freedom of assembly (Article 11) and freedom of movement

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