Fundamental Rights in the Estonian Constitution.
Robert Alexypp. 5-96
Summary
The basic rights in the Constitution of Estonia of 28 June 1992 are the subject of this book. The point of departure, elaborated in Chapter 1, is the idea of a comprehensive theory of basic rights, which treats the basic rights of national constitutions as well as the human rights in international convenants as parts of a greater enterprise directed toward the institutionalisation of practical reason at the national, supranational, and international level.
A fundamental question for all catalogues of basic rights is their bindingness or normativity. Basic rights have fully binding force only if their violation can be controlled by courts. Without judicial control – including constitutional review – basic rights are not actually institutionalised, which is to say that they do not really exist. Chapter 2 analyzes the ways in which basic rights are protected by the Estonian Constitution. The conclusion is that the Estonian basic rights have fully binding force.
Basic rights are essentially individual rights, and they have the character of claim rights. The counterparts of claims are obligations. In the Estonian Constitution, as in many other constitutions, some basic rights are expressed by imposing duties on the state. This leads to the much discussed problem of the subjectivity and objectivity of basic rights. They are subjective insofar as they grant claims to individuals. They are merely objective if they only impose duties on the state without granting power to individuals to raise claims with respect to the fulfillment of those duties. Objectivity is compatible with normativity, but not with the idea of individualism. The analysis developed in Chapter 3 shows that the basic rights of the Estonian Constitution have a nearly complete subjective character.
The Estonian Constitution contains not only basic rights but also basic duties. In Chapter 4 it is shown that both rights and duties form a system. The basic duties can be comprehended as limitations of basic rights.
The problem of limitation or restriction is one of the greatest problems of basic rights. The problem is discussed in Chapter 5, the longest chapter of the book. It is demonstrated that the rather complex regulations of the Estonian Constitution can be brought into a system, the core of which is the principle of proportionality. This principle is not only the archimedian point of the system of basic rights from a theoretical standpoint. It also plays a central role in the adjudication of the constitutional courts of many European countries as well as in the adjudication of the Court of the European Union in Luxembourg and the European Court for Human Rights in Stra?ourg.
One of the main distinctions in the theory of basic rights is that between general or abstract and special or concrete rights. In Chapters 6 and 7, it is shown that this distinction applies aptly to the Estonian Constitution, which grants a general right to freedom and a general right to equality together with many special freedoms and special prohibitions against discrimination.
Freedom and equality are the classical topics of basic rights catalogues. No modern catalogue can do without them. This shows that freedom and equality have an intractable place in basic rights catalogues. Modern catalogues must, however, contain more. Usually, this additional content appears in the text of constitutions, if at all, either in a fragmentary or in an extensive but unsystematic form. At first glance, the latter seems to be the case in the Estonian Constitution. The examination carried out in Chapter 8, however, shows that the Estonian Constitution can boast of an impressive modernity here. It contains not only the two classical general rights, namely to freedom and equality, but also – reflecting the new dimensions of basic rights – three further general rights: the general right to protection, the general right to procedure and organization, and the general right to support. With an eye to these three new general basic rights, it can be said that the Estonian Constitution is one of the most modern constitutions of the world.
There is no doubt that individuals are subjects of basic rights, and the state their addressee. Highly contested is the reverse relation. Can the state, for instance in form of a state university, be found at least in some cases on the side of those entitled by basic rights, and the citizen, for instance in cases of basic rights against discrimination, on the side of the addressees? Chapter 9 shows that the Estonian Constitution contains stimulating solutions here.
Chapter 10, the concluding chapter, deals with one of the greatest innovations of the Estonian Constitution, the “spirit of the constitution” clause contained in paragraph 10. This clause says that the wording of the basic rights catalogue does not preclude further rights if they are in the spirit of the constitution and in accordance with the principles of human dignity, the social state, the democratic state, and the rule of law. This clause leads to an understanding of the Estonian Constitution as a system not only of rules but also of principles moved and guided by rational argumentation. This is the key for the realization of practical reason through the institutionalization of basic rights.
