Constitutional Human Duties

• Publication year: 2023

Constitutional Human Duties

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Alona Hagay Frey^*

Table of Contents

I. Introduction........................................................................................313

II. Constitutional Human Duties in a Comparative Perspective... 319

A. What Are Constitutional Human Duties?..........................320
B. Methods of Enshrining Human Duties in the Constitution........................................................................ 322
C. Typology of Constitutional Human Duties........................325

i. Duty, Obligation, or Responsibility............................325
ii. Vertical vs. Horizontal Duties.....................................327
iii. Implicit Duties.............................................................328

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iv. Correlative Duties vs. Non-Correlative Duties..........330

D. Typology of Constitutional Human Duties........................333

i. The Bond of Citizenship..............................................334
ii. Civic Duties as a Status..............................................337

III. The Significance and Implications of the Constitutionalism of Human Duties..........................................................................338

A. Supremacy of the Constitution over Ordinary Laws.........340

i. Counter-Majoritarianism............................................340
ii. Judicial Review...........................................................342
iii. Non-Contradiction Presumption.................................343

B. Stability of Constitutional Human Duties and the Rules of Choice of Law................................................................345
C. Effect of Constitutional Human Duties on the Limits of Constitutional Rights ..................................................... 350

i. Restriction of Constitutional Rights by Constitutional Human Duties ..................................... 350
ii. Expansion of Constitutional Rights by Constitutional Human Duties ..................................... 353

D. Constitutional Human Duties: Enforcement and Remedies ............................................................................ 354

i. A Duty to Legislate......................................................355
ii. The Applicability of Constitutional Law to Other Branches of Law.........................................................357

E. Symbolic and Educational Value of Constitutional Human Duties....................................................................361
F. A Constitutional Human Duty as a Constitutional Value..................................................................................364
G. Republicanism, Communitarianism, and Liberalism—The Common Factor .......................................................... 368

IV. Conclusion.........................................................................................369

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Abstract

Constitutional human duties are simultaneously present and absent. Though many human duties are set forth in many constitutions throughout the entire world, modern scholarship has almost entirely excluded them from legal conceptualization. Liberalism shifted the spotlight to the individual, as an autonomous independent unit, while abandoning society. Furthermore, there is a tendency to frame constitutional human duties as "constitutional interests. " This Article suggests an innovative comparative analysis of constitutional human duties. Founded on that analysis, this Article develops a novel typology through which the characteristics of constitutional human duties are examined. The implications of various constitutional duties are explored in accordance with the proposed typology. This Article further argues that, notwithstanding the differences between various constitutional human duties, all the duties share core characteristics and implications. Finally, this Article proposes that the constitutionalization of human duties is justified as long as their inclusion in the Constitution is essential for protecting fundamental constitutional values.

The true source of rights is duty. . . . If we all discharge our duties, rights will not be far to seek. If leaving duties unperformed we run after rights, they will escape us like will o' the wisp. The more we pursue them, the farther they will fly. -Mahatma Gandhi¹

I. Introduction

In 1972, the European Commission of Human Rights (ECHR) rejected an appeal by an Austrian citizen who claimed that the constitutional obligation to vote violated his constitutional rights of freedom of conscience and freedom of speech.²

In 2012, an Irish citizen convicted of offenses involving Social Security fraud was sentenced to 12 years of imprisonment.³ The grounds cited for this cruel and unusual punishment were that the offenses were detrimental to the public interest, as well as to civil equality and integrity, upon which the mechanism of social security is founded.⁴ Therefore, he breached his constitutional duty, as a citizen, of loyalty to the state.⁵

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In 2016, an Indian court ruled that movie theaters would be required to play the national anthem before showing each film and that while the anthem was playing viewers would be required to stand, the flag would be shown on the screen, and the doors of the theater would be closed.⁶ The Indian court based its decision on the constitutional duty of Indian citizens to respect the flag and anthem.⁷

These three cases occurred at different points in time different countries, and refer to different issues and legal branches. However, each case refers to individuals upon whom a constitutional duty was imposed. Each of the respective duties embodies a social interest representing a constitutional value that conflicted with constitutional rights. Moreover, in all three cases, the courts ruled that the human duty prevailed in the constitutional balance.

Since the mid-twentieth century, constitutional scholarship has focused upon the constitutional rights of individuals on the one hand and on the powers of government on the other. Nonetheless, side by side with constitutional rights and government powers, many constitutions enshrine constitutional du-ties.⁸

This Article attempts to shed light on those human duties. These are duties that embody constitutional values, and they may not always generate a corresponding right. The entitlement to demand that individuals fulfill their respective duties is that of society as a whole. In most cases, the obligation is imposed only on the citizens of the specific country.

The choice to discuss human duties in the constitutional context gives rise to puzzlement and natural aversion. Nonetheless, according to Hohfeld, a right is always accompanied by an implied corresponding duty.⁹ According to

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that theory, human rights, by their very nature, generate corresponding obligations,¹⁰ which may violate other rights.

Academic study with respect to individual obligations and personal responsibilities has emerged in recent years, both on the international level and within domestic law.¹¹

For example, in 2001, the United Nations Economic and Social Council (ECOSOC) appointed Miguel Alfonso Martinez as a Special Rapporteur with respect to this issue, establishing the global responsibility movement.¹² In 2009, a British bill that constituted an attempt at constitutionally enshrining human rights and duties in an official document was drafted.¹³

In the second half of the 20^th century, the individualistic nature of liberal ideology was attacked by communitarian thinkers. Communitarianism holds that legal regulations governing human interaction must consider not only individual rights, but also the special relationships that exist between individuals, their community affiliation, existing social institutions, and the generally accepted social norms in the context of those institutions.¹⁴ Thus, communitarianism contends that the autonomous self is not an isolated factor. Rather, it is inseparably connected to and shaped by the community in which the individual grew up, as well as by the community's values and the interpersonal relationships that he or she developed within it.¹⁵

Nonetheless, although the applicability of constitutional norms to individuals is a fundamental aspect of constitutional and political theory, the legal implications of communitarianism and of establishing constitutional human duties are unclear. Social science experts have often limited themselves to the demand for the resurrection and enforcement of social morality while neglecting the legal implications of such a demand. This Article examines those implications.

This Article examines a wide range of constitutions and the case law that addresses them: first, to illustrate the wide phenomenon of "constitutional duties;" second, to examine and construct a common typology among existing

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constitutional duties; and third, to identify the legal implications of constitutional duties with respect to the law in general and legal discourse in particular. While it is true that not all countries are liberal western countries, the comprehensive nature of the study and the fact that it does not focus on a single state made it possible to create that typology and to examine those implications in depth.

A review of various national constitutions shows that 70% of the world's constitutions specify at least one such duty.¹⁶ 64% of those constitutions explicitly noted at least one constitutional human duty, while 58% explicitly noted two or more.¹⁷

Individual human beings are subject to many legal duties and prohibitions. This Article exclusively examines human duties that are enshrined in various constitutions. I will, however, emphasize that, although this Article refers to those duties as "constitutional human duties," as a paraphrase of "constitutional human rights," not many such duties apply to all individuals. In most cases, these duties are imposed upon citizens of...