Toward a Model of Constitutions (eBook)

1. 
A Constitutional Structure

“For to be free is not merely to cast off one’s chains, but to live in a way that respects and enhances the freedom of others.”

—Nelson Mandela

This work attempts to model a Constitutional structure by approaching it as an exercise for protecting and increasing individual liberty. To achieve that aim, we have to bring together several areas that are usually not dealt with together. These include the likes of logic, ethics, human rights, Constitutions, organizational boards, and protection of private space. But the traditional area most closely related to this work is that of human rights.

The main idea is to develop an analytical framework that can increase the efficacy of existing human rights, while remaining within the paradigm of the Universal Declaration of Human Rights (UDHR) from 1948.1 To be more specific, the framework attempts to improve human rights in people’s public spaces, while staying outside of people’s private spaces.2

1. Constitutional Structure

This model’s structure is explained in three parts. The first part will identify the starting root element. The second part will look at eight complementary elements that are added sequentially to build up the model.3 The third part examines the final ninth element, which must be complementary to the whole model that has been built up to that point.

A. Starting Up: Life/Liberty as the Root Element

In the first part of the model, the root element of the human social system is represented by human life itself. After all, it cannot be subdivided further, nor can it be ignored in anyway as a redundant element. Life is rather well modeled by Article 1 of UDHR, which states, “All human beings are born free and equal in dignity and rights.” This suggests the root element represented by “life” stands for both freedom and equal dignity and rights.

Indeed, as far as this model is concerned, the two factors of liberty and equal dignity and rights are inherently present within it. In fact, removing either of these factors will completely demolish the model.

Having said that, it is arguable that liberty is more fundamental to the model since it is more directly present within the root element of life. However, from a social perspective, liberty cannot be guaranteed, unless it is accepted that everyone has equal dignity and rights. Thus, the more nuanced view is that both freedom and equal dignity and rights are equally necessary, at least if we are to have a viable Constitutional model.

B. Building Up: The Pursuit of Complementary Rights

The second part of the model is composed of complementary elements added to the root element. Although these elements cannot claim to improve the root element’s inherent quality, they are meant to protect and increase the space available for the root element to operate in. Indeed, in protective parlance, the complementary elements can be thought of as fortifications erected around the root element.

Fig-1—Structure of the Model

Figure 1 shows how the addition of each new element creates a larger set containing all earlier elements, eventually containing the whole model. The second part of the model consists of the eight elements in the middle, which can be grouped into two patterns of four elements each: the initial expansion pattern and the later consolidation pattern. The next two discussions will cover these two patterns in detail. For now, let us understand more about the complementary elements.

Each additional element is termed complementary because each one enables some new functionality that the earlier elements had been building toward but could not attain without the extra element being added to the mix. It is critical to note that these additional elements cannot have an adversarial relationship with any of the earlier elements. If there was such an adversarial relationship, it would imply the eventual failure of the model due to its internal contradictions.

This absence of internal contradictions is essentially the constitutional logic that is used to build this model. Obviously, this does not meet with mathematical standards, but as we shall see, it serves well enough to choose some options over others.

To bring the above logical or structural description of the model in line with the goal of individual liberty and rights, from here onward the complementary elements are termed as Complementary Rights, or as just Rights for the sake of simplicity.

However, these Rights are qualitatively different from most other human rights that are protected by documents like UDHR. Each of these Rights represents a fundamental degree of freedom, which, when taken together, gives the layout of the Constitutional structure. By contrast, the human rights paradigm of the UDHR (and other related documents) does not attempt to identify similar degrees of freedom, but rather focuses on clarifying the areas having the potential to suffer some abuse, so that those areas can be legally defended if the situation calls for it.

Initial Expansion of the Model (Initial Four Rights)

Let us now look at the initial expansion of the model, which is composed of the first four Rights (shown in Figure 1). The first Right is the negative version of the Golden Rule, which requires us to avoid harming others, and the second Right is the positive version of the Golden Rule, which requires us to help others.

These first two Rights, termed the Claim-Right and Help-Right, are reflected in the Hippocratic Oath, commonly attributed to the ancient Greek physician, Hippocrates. A portion of the oath is translated as, “I will…benefit my patients according to my greatest ability and judgment, and I will do no harm or injustice to them.” 4 Another segment in the same oath goes on to state, “Into whatsoever houses I enter, I will enter to help the sick, and I will abstain from all intentional wrongdoing and harm.”

Crucially, while the first Right of avoiding harm is mandatory, the second Right of helping others is voluntary. Incidentally, the early Chinese philosopher Mencius puts the positive Golden Rule as, “Try your best to treat others as you would wish to be treated yourself.” 5 Perhaps the spirit of the Golden Rules is also adequately conveyed by the early nineteenth century reformer William Wilberforce: “Let everyone regulate his conduct…by the golden rule of doing to others as in similar circumstances we would have them do to us, and the path of duty will be clear.”

From a visual perspective, the first two Rights fill the spaces present in the two bottom rows of Figure 2. In particular, while the Claim-Right creates only the space on the right of the bottom row (the space on the left belongs to the root element), the Help-Right creates two new functional spaces in the row immediately above the bottom row.

Fig-2—Initial Expansion of Model via the first four Rights

With regard to the two spaces created by the Help-Right, the left side represents the Liberty side of the Help, while the right side represents the Claim side of the same Help. The Claim present in the Help is perhaps the promise extended to the other person so that the Help can take place with more ease.

As an indirect verification of the second Right and its voluntary nature, it is possible to cite once more Article 1 of UDHR: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.” Note that the concepts of freedom and equal rights are invoked first and unambiguously, while brotherhood is brought up later, more as a desirable item than as a compulsory mandate.6

The third Right, termed the Sovereignty-Right, is indicated by the African independence leader Kwame Nkrumah: “No people without a government of their own can expect to be treated on the same level as people of independent sovereign states. It is far better to be free to govern or misgovern yourself than to be governed by anybody else.” As shown in Figure 2, four extra spaces are created as part of the Sovereignty-Right.7 Obviously, this is an increase from the two spaces created by the Help-Right, and the lone space created by the Claim-Right. Clearly, the initial expansion pattern can be understood as a doubling of the functional spaces at each new level.

The lower left space within the Sovereignty-Right represents the liberty of the people, in that people can come together to decide their affairs. The lower-right space represents the Claim of the people, in that people’s Rights at the lower levels cannot be violated. The upper-left space represents the liberty of the people to Help people, which implies people can voluntarily join structures like the public service. The upper-right space represents the Claim present in the above Help of the people, which implies the public service structures must uphold their promise to the people.8

Incidentally, these four spaces created by the...