5 - Limiting constitutional rights by law

Summary

Legal authority to limit a right

In a constitutional democracy, a constitutional right cannot be limited unless such a limitation is authorized by law. This is the principle of legality. From here stems the requirement – which can be found in modern constitutions’ limitation clauses, as well as in other international documents – that any limitation on a right be “prescribed by law.” At the basis of this requirement stands the principle of the rule of law. Every provision limiting a constitutional right must derive from a legal norm whose authority can be traced back – either directly or indirectly – to the constitution itself. If this authority cannot be found, the limitation is unconstitutional. It can be said that in these matters the principle of legality – and the authorization it requires – is a threshold requirement. It is the legal “threshold” to the laws of proportionality. If the legality requirements are not satisfied, there is no need – and no reason – to examine the proportionality issue.

The legality principle requires legal authorization – which can be traced back to the constitution itself – to limit a constitutional right. This is the “authorization chain” requirement of having a “constitutional legal pedigree.” This requirement represents a formal aspect of the rule-of-law principle. In addition to this formal requirement, the legality principle has been interpreted as requiring three other conditions: first, in several legal systems an authorization of a general nature, or a “general application” authorization; second, accessibility to the law; and, third, clarity of the law. These requirements are based on a jurisprudential understanding of the principle of the rule of law. It establishes additional requirements, which in turn represent the very essence of a constitutional democracy. These requirements are essential for the rule of law, not of men. This is what Rawls called “formal justice,” and Fuller named “the inner morality of the law.” The list of these requirements is not final: it develops along with the understanding of the nature of law and its place in our society. The legal basis for these requirements is in the interpretation of the word “law” in the limitation clause. We turn now to take a closer look at the principle of legality, as well as its underlying notion of the rule of law.