Since the end of the Second World War nearly all liberal democracies have abolished the death penalty, and it is noteworthy that most of the Central and Eastern European (CEE) nations which have become democratic since the end of the Cold War have also done so, as has South Africa. Arguably the CEE states had no choice, given that they all sought membership of the Council of Europe, whose European Convention on Human Rights effectively bans execution. In at least one case, however, that of Hungary, the court rushed to make its decision ahead of the Council membership date because it was so determined to demonstrate the new civic values of the transition. The USA is a notable exception among major democratic societies (Japan is another) in retaining capital punishment, though it is not a sentence available to the courts in all of the separate states; Michigan, for example, abolished capital punishment as early as 1847. There was a brief moratorium on execution in the USA from 1972 because the Supreme Court, in Furman v. Georgia, held most of the existing death penalty statutes unconstitutional. They were not able to hold that the death penalty per se was a cruel and unusual punishment, but the racially-discriminatory incidence of the sentence was enough to allow the court to argue that the existing statutes were a denial of due process. Nevertheless, 28 states have subsequently rewritten their capital punishment laws and resumed executions, and decisions of the Supreme Court since the mid-1980s have continued to reduce the legal barriers to execution. None of the major human rights codes outlaws capital punishment as such, because the tide of revulsion against it, from vocal sectors if not from mass public opinion, is a more recent phenomenon than the codes.
The most that courts who have any sort of jurisdiction in the matter have been able to do is to control to some extent the incidence of the death penalty and some ancillary matters. The British Law Lords, in their capacity as the Judicial Committee of the Privy Council, for example, often hear death penalty appeals from those parts of the Commonwealth that still retain the sentence. They have never felt able to pronounce the sentence itself unconstitutional, but have several times struck down death sentences because of undue delay in carrying them out which they have held, in common with the UN Human Rights Committee, to be cruel and unusual. International human rights campaigners have been active in attempting to get the death sentence abolished completely. In 1990 the UN issued an Optional Protocol’ (the second such) to the International Covenant on Civil and Political Rights specifically aimed at encouraging the total abolition of the death penalty, available to be signed by those countries prepared to renounce its use in perpetuity. The signature list is considerably smaller than that for the Covenant itself, and the main Covenant states only that, if the death penalty is retained, it can only be used for the most serious of crimes.
De facto discrimination
Relatively little discrimination, racial, gender or otherwise, in the modern world is overt and formal. Such discrimination, where laws or regulations specifically treat people differently according to some particular characteristic, is usually referred to as de jure discrimination. Far more often, patterns of behaviour occur where people’s life chances are in fact unequal because of their religion, colour, age or whatever, but this follows from correlated sociological or personal facts rather than openly discriminatory behaviour. The classic modern example is racially-based educational disadvantage in the USA arising from residential patterns. Long after de jure racial discrimination in education, practised almost entirely in the South, had been outlawed in the celebrated case of Brown v. Board, blacks were systematically getting inferior education in northern states because the highly-localized funding basis for school districts meant that neighbourhoods where blacks were in a majority delivered inferior education because of their relative economic deprivation; and because of these racially segregated residential patterns, blacks were still educated almost entirely in nearly all-black schools. To remedy this de facto discrimination the Supreme Court developed the policy of busing, whereby schools had to be artificially integrated. De facto discrimination can occur in any institutional context. A typical example has been in sex discrimination where, despite nearly a generation of legislation, women still tend to earn lower average salaries than men. It is hard for legislation to penetrate these patterns. An example is the British Sex Discrimination Act of 1975, which attempted to make it illegal to treat women differently from men not only directly, but by applying criteria which will pertain to substantially fewer women than men. Only continual pressure by legislation to affect decision-making mechanisms can hope to prevent such discrimination. For example, policies making it illegal to ask candidates for jobs about their marital situation, requirements to have women and minority members on all selection committees and so forth can help, but only the slow process of changing entire cultures of decision-making in industry and commerce, as well as the state and educational institutions, will abolish de facto discrimination. The recent history of the United Kingdom in matters of racial equality stands as a further example, particularly where major institutions like the police service are concerned. Thus an entire sociology has grown up around the concept of ‘institutional racism’. (See also age discrimination and racial discrimination.)
A declaration, given by a court, is a statement of what the law is in a particular situation. As a remedy it may seem very tame, as granting a declaration does not, in itself, either award damages for an injured party, nor, like an injunction, constitute an order to cease to do an illegal act. In English law the power to grant declarations, usually described as giving a declaratory judgment, is a discretionary power which has only relatively recently become commonly used in public law cases. It originates in a statutory power granted in the 19th century, but the revival of English public law with the creation in 1977 of the procedure of judicial review has made the granting of a declaration a more common, as well as a more powerful, remedy. It does have considerable effect, however, when, as is common in cases touching on human rights, one party to the conflict is the government or a local authority. Here effective remedies may not easily be available, particularly because of the difficulty of enforcing injunctions against the state itself, but a mere statement that what the government is attempting or proposing to do would be illegal may be all that is needed to protect rights. Declarations are often sought in other jurisdictions, the new South African constitutional order being an example, because democratic governments do not find it easy to disregard such judicial pronouncements, and because the actual striking down of some government rule or parliamentary legislation may be too broad a solution.
Declaration of Independence (American)
The American Declaration of Independence of 4 July 1776 was both the effective announcement of the American War of Independence, and the starting point for most American constitutional theory. It was written, with only the slightest amendment from a committee, by Thomas Jefferson, although he himself denied that it was in any sense original, stemming as it does both generally from John Locke’s theories of government, and more specifically from earlier American statements like that of the slightly earlier Virginia Declaration of Rights. It falls into two parts: an initial statement which has become famous, asserting the theory that government exists only to protect mankind’s inalienable rights to ‘life, liberty and the pursuit of happiness’; and a set of some 30 indictments against the British Crown for offences ranging from the deeply constitutional to mere policy disagreements. As a constitutional document it has a very vague status, and neither the US Supreme Court nor constitutional theorists are very willing to use it to support arguments in court, as it has less effective force than the preambles typically found at the beginning of all written constitutions. In part this is because it is, overtly, a revolutionary document and therefore hardly suitable as part of a constitution, which is a description of an ongoing political system; and partly it is because the rights enshrined in it are so broad as not to be justiciable. The most interesting right guaranteed is the right to pursue happiness, not the right to achieve it nor be granted it.
Declaration of the Rights of Man and of the Citizen
This human rights document, passed by the French National Assembly in 1789 at the height of revolutionary fervour, is one of the earliest in legal history, being only two years younger than the US Constitution itself. It is treated with great veneration by the French, and indeed is used extensively by the French Conseil constitutionnel as a source of constitutional doctrine. It was indeed radical in its day, but can seem curiously disappointing when read against 20th-century expectations of what rights such a document should protect, and how trenchantly it should protect them. Its radicalism is, perhaps, demonstrated more in its egalitarianism than in its protection of liberal rights. Article 1 states: ‘The only permissible basis for social distinction is public utility’, and other articles ensure the French dream of ‘a career open to the talents’. Executive power is restricted to what the legislature ordains, but there are virtually no limitations on what legislation can achieve. Indeed, Article 7, while providing that no one can be accused, arrested or detained except as provided by legislation, goes on to say that anyone charged under legislation must immediately obey, and ‘resistance renders him culpable’. Even the protection against persecution for opinions and religious beliefs in Article 10 makes an exception if the manifestation of them disturbs public order. Even the egalitarianism enshrined in the Declaration is limited, because property is defined as an ‘inviolable and sacred right’ in the final article, and indeed the article’s requirement for compensation if property is taken for public purposes has been used by the Conseil constitutionnel to limit nationalization legislation in the Fifth Republic. While this particular example may stress the conservative nature of the document, it has in fact become a very important part of the bloc de constitutionnalité developed by the Conseil, demonstrating how enduring such constitutional documents may be in their effect.
In fact the Declaration represents the ambitions of what was essentially a rising capitalist class, and protects such a group from the sort of extra-legal attacks of the previous monarchical state, but has none of the sense of a need to protect against the tyranny of the majority that suffuses the slightly older US Constitution. (The full text of the Declaration of the Rights of Man and of the Citizen is given in the Appendix.)
Many constitutions and bills of rights have some provision to forbid the imposition of what the US Constitution terms cruel and unusual punishment, and the ban on degrading punishment is typical of these. While a ban on cruelty, whether or not obeyed, depends on a very general and consensual moral code, the idea of degradation as unacceptable punishment is rather more recent, and related to a rather specific strand in humanitarian thinking. Essentially the idea that it is improper to degrade another human being comes from the current of thought often described as ‘dignitarian’, and best represented best by the first article of the German Constitution, which states: ‘The Dignity of Man shall be inviolable. To respect and protect it shall be the duty of all state authority.’ This approach has been widely adopted in the transition democracies such as those in Central and Eastern Europe and in South Africa. In such a view a person may deserve punishment, it may be necessary for deterrent purposes that he be punished, and it may be in his interests, through reform, to be punished, but at all times he remains a human being entitled to be treated as the equal of all others except in the limited way caused by the punishment. Yet degrading someone, intentionally reducing him in public respect, has at times been seen as exactly what punishment can and should do. In fact criminological research suggests that it is the very fact of being held up to public dishonour by being put on trial that accounts for much of the deterrent effect of criminal law. Certainly modern states do at times intentionally use what can only be called degrading punishment; the return to the chain gang as a punishment in some US states has precisely this intention, and much of military discipline, until recently, at least, has been based on the principle. Milder examples are the occasional use of intentionally humiliating punishments for drink drivers by some US state judges, the point being to harness public disapproval to state punishment as a form of deterrence. There is, in fact, a contradiction at the very root of the concept. Unless degrading punishment actually does not mean anything more than cruel punishment, it may be logically impossible to punish at all without degrading the recipient.
Detention is the forcible removal of a person to a place where he can be prevented from leaving, and his being kept in this state of absence of personal liberty, subject to whatever regulations the detainer may impose. It is similar to imprisonment, but imprisonment is technically restricted to a legally-sanctioned punishment for a criminal offence; hence the English common-law offence of ‘false imprisonment’, where the imprisonment is a form of detention, which is ‘false’ because it is not an act of the state pursuant to criminal law. Detention can therefore be either legal or illegal, depending on who does it and the justification. The term is commonly used to cover acts of the state either before an actual prison term has been set but in anticipation of one, as in pre-trial detention, called ‘remand’ in the United Kingdom, or where the deprivation of liberty is the consequence of the detainee’s criminal act, but for some reason the state is unwilling to acknowledge that he is being imprisoned as such. Thus it is common to refer to what amount to prison terms for juvenile offenders as ‘periods of detention’. In a somewhat similar way, someone forcibly deprived of freedom and forced to reside in a hospital or treatment centre because of mental health problems is likely to be described as undergoing ‘detention’. However, in human rights law, for example in the European Convention on Human Rights