English traditions

Instruments protecting human rights or fundamental rights first appeared in the English-speaking world. The British Magna Carta (1215, 1225), Petition of Right (1627), Habeas Corpus Act (1679) and Bill of Rights (1688) are considered to be the first adopted texts. However, the first declarations of human rights in the modern sense were included in the Constitution of the State of Virginia (1776) as well as in the Declaration of Independence of the United States of America (1776). These latter instruments in turn had an impact on the French Déclaration des droits de l’homme et du citoyen adopted in 1789 which was followed around the same time by the Bill of Rights in the United States ¹⁶⁴. Magna Carta provided for a limited set of fundamental rights, including recognition that no one should be denied of justice or punished except by judgment of their peers or by the law of the land¹⁶⁵. That protection against denial of justice could be considered the foregoer of the more recent protection of the right to a fair trial which has later become established in the common law systems and which has also served as a source of inspiration for international human rights instruments.

164 Déclaration des droits de l’homme et du citoyen de 1789, and Amendments (three through twelve) to the Constitution of the United States, known as the Bill of Rights, ratified on December 15, 1791 (proposed on September 17, 1787). See Ségur 2007, p. 13 and 25, and Wesel 2010, p. 315.

For more details on the development of the American Constitution, see e.g. Tushnet 2006, p.

8-17, and for details concerning the contents and interpretation of the Constitution, see e.g. Dorf

& Morrison 2010.

165 See Leyland 2007, p. 10.

In other respects, the early British constitutional acts mainly provided for privileges aimed at the protection of property rights¹⁶⁶, which appears to also have been the case for example in Sweden.

Despite that there was an example in England of fundamental rights provisions as early as in the 13^th century, there has been no written constitution providing for such rights in more recent times and, although there is an increasing body of statutory law, the legal system has still largely developed through case law. This does nevertheless not mean that there has been no constitutional law in England. To the contrary, such rules and principles have been developed by means other than a specific statutory instrument¹⁶⁷. However, the documentation of the British constitution would be a hard task as even today, the constitutional rules and principles are found in numerous statutes and reports as well as in a multitude of case law, including European mate-rials.¹⁶⁸ A basic constitution can be considered to consist of the Scotland, Northern Ireland, and Government of Wales Acts, the Representation of the People Act 2000, and the Freedom of Information Act 2000¹⁶⁹. This will not be elaborated on in more detail in the present study¹⁷⁰. In fact today, although there is still no written instrument called a constitution, most of the applicable law in the English legal system as well as in other common law systems is already in statutory form. In England, this means not only the laws enacted by Parliament, and subordinate legislation, but also EU law and other international elements incorporated into the legal system.¹⁷¹ It may also be noted that although the expression “public law”¹⁷² is not used in common law systems,

166 See Leyland 2007, p. 10 and 11, and Gearty 1997, p. 56-59.

167 Marshall 2003, p. 31. In the view of Marshall, the United Kingdom does have a constitution in the sense that there is a “combination of legal and non-legal (or conventional) rules that currently provide for the framework of government and regulate the behaviour of the major political ac-tors”, and further n the sense that there is a “totality of legal rules, whether contained in statutes, secondary legislation, domestic judicial decisions or binding international instruments or judicial decisions, that affect the working of government”. However, there is neither any particular instru-ment called “a constitution” nor other statutes or instruinstru-ments having such a particular status as would make it necessary to apply a special procedure to their amendment or repeal.

168 See Marshall 2003, p. 36, and Leyland 2007, p.9.

169 See Gearty 2004, p. 38. Gearty finds those acts to constitute more a “written constitution” and more democratic than it was before.

170 For details on the sources of constitution and on constitutional conventions, see e.g. Leyland 2007, p. 20-32.

171 Bennion 2009, p. 5 and 6.

172 Public law is the law governing relations between the sovereign and private individuals, as un-derstood by continental lawyers. Public law covers administrative law, constitutional law and, in some countries, criminal law. See Rossini 1998, p. 7.

the concept of constitutional law¹⁷³ is known in common law systems, including the English legal system.

Insofar as the protection of human rights or fundamental rights is concerned, the developments in the United Kingdom were affected by many factors, including wars and economic growth, but unlike in Germany, for example, they did not lead to strengthened protection of fundamental rights, although some rights and particularly the protection of property did enjoy considerable protection.¹⁷⁴ According to Leyland, those constitutional arrangements have evolved in phases reflecting the political, social, and economic experiences of many centuries¹⁷⁵. Furthermore, some improvements took place throughout the 20^th century in the protection of equality as well as in the freedom of thought, association and expression.¹⁷⁶ Although the government increasingly paid attention to human rights, particularly as a result of the ratification of various interna-tional human rights conventions, it took time before those internainterna-tional conventions actually had an effect on municipal law.¹⁷⁷ They are, however, today among the sources of constitutional law. Although the more recent sources of constitution were not avail-able at the time of drafting of the European Convention on Human Rights, and there was very little in common with the English constitutional sources of constitutional law and the Convention, they mean today as part of the English law that the English constitutional law has gradually become closer to those of the continental legal systems as regards the rights enjoying protection.

The lack of a written constitution at the moment of drafting of the European Con-vention on Human Rights and the relatively slow development of national provisions on the protection of fundamental rights mean that the impact of English constitu-tional traditions on the text of the European Convention on Human Rights is rather modest. Despite that, the ideas of the equality and freedoms of thought, association and expression as well as the protection of property are among those common values and traditions of European States that are visible in the text of the Convention. The early civil rights instruments of the English-speaking world, with the idea of basic civil liberties, do play a role as a source of inspiration, but rather indirectly through the constitutional developments in continental Europe, particularly in France. However,

173 Constitutional law means the law affecting the exercise of sovereign power over the individual, as well as the structure of government and the balance of powers among the branches of government.

In the United States, constitutional law is derived solely from the Constitution. In the United Kingdom, constitutional law is not derived from a single instrument, but from various documents, statutes and case law, as well as constitutional conventions (i.e. practice). See Rossini 1998, p. 7.

174 Feldman 2003, p. 402-404. It may be noted that the strong protection of property is a feature that emerged early also in the French legal system and is a feature in common with the Finnish constitutional traditions, for example.

175 Leyland 2007, p.9.

176 For more details, see Feldman 2003, p. 406-410.

177 Feldman 2003, p. 439.

in the light of the preparatory work of the European Convention on Human Rights, the common law system has played a role in the draft text, particularly through the American constitutional traditions which have served as an example for the drafting of the relevant United Nations instruments. Those, in turn, have been used as the main model for the drafting of the European Convention on Human Rights and the United States was among those victors of war that played a strong role in the drafting of the human rights instruments. An example of the strong elements of common law traditions visible in the text is particularly the fair trial rights strongly established in the American legal system. The fair trial elements similar to the ones in the Bill of Rights of the United States Constitution are missing in the early constitutional acts of the States covered by the present study, but due to the shared common law tradi-tions with the United States, some English influence can be found to exist in the fair trial provisions of the Convention as explained in the foregoing. Those have also been included in the present fundamental rights provisions of the Constitution of Finland.

Apart from the fair trial rights, the clearest elements in common with the English constitutional traditions and the Convention include property rights as well as later the right to equality and the freedoms of thought, association and expression. These developments have some similarities with the Swedish ones.