Band 18, Heft 3

This Article challenges one of the most robust commonplaces in the study of Indian Constitutional Law, viz. that Directive Principles of State Policy under Article IV cannot be enforced by the judiciary. Through a careful reading of the Constitution’s text and structure, as well as an investigation of relevant precedents within India, the United States, and other common-law jurisdictions, it argues: (1) Article 39A commands ‘the State’ to promote justice on the basis of equal opportunity, in particular through legal services enacted through legislation or other methods; (2) The judiciary is part of the State that Article 39A commands; (3) Courts, then, must use their powers to fulfill Article 39A even if that Article is not judicially enforceable; (4) The judiciary has authority over the maintenance and integrity of the legal system; (5) It also has its own authority to spend money to maintain and improve that system; and (6) it has the authority to allocate funds to pay lawyers and other legal personnel in civil cases if it believes that doing so will strengthen the legal system and fulfill its Article 39A mandate. The Constitution’s promise of the right to counsel in civil cases thus lies well within the judicial power to accomplish. The Article suggests areas where the judiciary should use this power, e.g., family law, housing, and the environment. It also raises important questions about the very nature of Directive Principles and the meaning of judicial ‘enforcement.’

This article presents a comprehensive examination of the role of constitutions in private disputes, with a specific focus on the Chinese Constitution. Utilizing an extensive dataset of digitized court adjudications, this study delves into a relatively unexplored area, yielding crucial factual and legal insights. The research reveals that the Chinese Constitution significantly influences civil adjudications, both implicitly and explicitly. Furthermore, court judgments emerge as pivotal forces shaping public awareness of constitutional principles. These findings hold profound implications for comprehending the role of constitutions in contexts beyond democratic frameworks, particularly within the private sphere. The study underscores how the capitalist market in China empowers individuals to assert and safeguard private rights, consequently affording the Constitution a protective role in this realm. Concurrently, the existing regime has systematically eroded the Constitution’s influence in public affairs, maintaining its symbolic and rhetorical role. Notably, the concept of judicial independence remains a sensitive subject in China, leading many civil courts to eschew constitutional provisions in favor of political expediency. This paradox underscores the necessity of establishing a reasonably independent judiciary as an integral facet of constitutionalism in such settings. In sum, this research challenges prevailing assumptions about constitutionalism’s contours. It transcends the conventional focus on political authority, illustrating how empirical investigations into constitutional performance within civil litigation can illuminate the emergence of constitutionalism in the shadows of non-democratic systems. These findings offer valuable insights into the role of constitutions in private disputes and pave the way for further exploration within this evolving scholarly domain. Ultimately, this study advances our comprehension of constitutional realities and their far-reaching impacts on the legal landscape and society within contemporary China.

This essay appraises the commemoration of the 75th anniversary of the Universal Declaration of Human Rights in 2023 as a watershed to reflect on the promises and problems of implementing the international human rights agenda. It posits that the time is ripe to accelerate progress on this fundamental global governance technology by reaping historic lessons that are reshaping international relations in the contemporary arena. This is with a view to mitigate complex ambiguities and contradictions which hamstring the mobilization of meaningful solidarity and will power that are necessary for cooperation among states to help evolve a more secure, peaceful, and prosperous world. In this light, the essay articulates the institutionalization of the international human rights regime as approximating a proxy for equality as a core value to strengthen the global common good. Building on this formulation, it proffers inequality as a warning system that is useful to radically rethink conventional pathways that compromise the international security architecture. Zeroing in on Africa as an instructive frame of reference, the essay explores how unfolding opportunities for urgent multilateral action might nurture innovative solutions to wage a sustainable war against cross-pollinating vulnerabilities that are decisively fueling insecurities and escalating future uncertainties.