Paper Conference Ind vs. State Conference 2013 Final 2

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Thiago Amparo - Individual vs. State Conference 2013 1

PAPER for 21st annual The Individual vs The State Conference Liberty in the Protective State: Theories and Practices of State Obligations to Secure Civil and Political Rights (Oct. 25 – 26, 2013, CEU)

Finding ‘Refuge in a Jurisprudence of Doubt’: Protective Jurisprudence and Expansive Interpretation in Brazil, South Africa and Inter-‐American System

Thiago Amparo

(Central European University)

Table of Contents

1. Presenting Three Methods of Non-‐Textualist Expansive Interpretation ........... 6 1.1. Interpretation According to the Constitution in the Brazilian Constitutional Jurisprudence ....................................................................................................................................................... 9 1.2. Purposive and Generous Interpretation in South African Constitutional Jurisprudence .................................................................................................................................................... 12 1.3. Open Interpretation in the Inter-‐American Court of Human Rights ............................ 15

2. Analytical Overview of Three Examples of Protective Jurisprudence: Deference, Paternalism and Schizophrenia ............................................................................ 18 2.1. Judicial Deference or Interference?: Uniões Homoafetivas Case (Brazil) ................... 18 2.2. Sympathy or Paternalism?: Jordan Case (South Africa) .................................................... 21 2.3. Schizophrenia: AtaIa Riffo and Daughters v. Chile (ICtHR) ............................................... 24

3. CONCLUSION ................................................................................................. 27

4. REFERENCES .................................................................................................. 30 CASE-‐LAW .......................................................................................................................................................... 30 BIBLIOGRAPHY ............................................................................................................................................. 30

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Finding ‘Refuge in a Jurisprudence of Doubt’1: Protective Jurisprudence and Expansive Interpretation in Brazil, South Africa and Inter-‐American System

If constitutions or treaties are to be understood as “living trees” (a hit expression in

the Canadian constitutional jurisprudence2), expansive interpretation of their texts

might serve as an effective fertilizer for the fruition of positive obligations. Expansive

interpretations are often used to read constitutional or treaty-based rights as imposing

positive obligations upon states. By doing it, expansive interpretations, as I argue

here, constitute a powerful instrument in the hands of judges in order to advance a

protective state, i.e. a state where from rights emanate positive obligations.3

Here, I apply the generic term ‘expansive interpretation’ to refer to non-

traditional methods of interpretation which purposively, to use a fashionable

expression in the contemporary legal literature4, expand the normative text to its

1 The title comes from the famous opening phrase of US Supreme Court, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), p. 844. 2 Bradley W. Miller, “Beguiled By Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada,” Canadian Journal of Law and Jurisprudence 22, no. 2 (2009): pp. 331–354. For another account on living constitutionalism in Canada, see also: Aileen Kavanagh, “The Idea of a Living Constitution,” Canadian Journal of Law and Jurisprudence 16, no. 1 (2003): pp. 55–89. 3 As explained by Möller in his paper for Individual v. State Conference 2013, positive obligations have already a history in constitutional law of at least four decades, taking his examples primarily from German case-law. For Möller: “constitutional rights law had given up the view that rights impose only negative obligations at least since the 1970s when the doctrines of positive duties or protective obligations became established. The idea is that the state is under a duty to take steps to prevent harm to the interests protected by (otherwise negative) rights. Thus, the state must, as a matter of constitutional rights law, put in place a system which effectively protects people from dangers emanating from other private persons, such as criminal activities which threaten, for example, life, physical integrity, or property; and it must also protect them from dangers which do not have a (direct) human cause, such as natural disasters” (Kai Möller, “From Limited Government to Personal Autonomy: On the Basis of Fundamental Rights,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, p. 3). 4 For a detailed account of purposive interpretation, see: Aharon Barak, Purposive Interpretation in Law (Princeton: Princeton University Press, 2005). For a critique of purposive interpretation, particularly the one developed by Barak, see: Stanley Fish, “Intention Is All There Is: A Critical Analysis of Aharon Barak’s Purposive Interpretation in Law,” Cardozo Law Review 29, no. 3 (2008): pp. 1109–1146.

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semantic limits (or even beyond it, as the Brazilian case will show) in order to serve a

specific telos imposed by the interpreter.

In this line, this paper has, first, the objective of describing three methods of

expansive interpretation, namely: ‘generous and purposive interpretation’,

‘interpretation according to constitution’ and ‘expansive interpretation’, as so called

in South African and Brazilian constitutional jurisprudences, and in the Inter-

American Court of Human Rights, respectively. Second, this paper aims at criticizing

the ambiguous relation between such expansive methods of interpretation and

protective jurisprudence in the abovementioned jurisdictions, in particular in cases

involving discrimination in relation to gender and sexual orientation.

As far as the structure is concerned, I start with a map of the three methods of

expansive interpretation as conceived by the respective normative text and doctrine.

In the subsequent section (Part 2), I present more in depth cases involving those

methods of interpretation in particular in the realm of discrimination on the basis of

sexual orientation and gender. In the last section, I draw conclusions in light of the

jurisprudence of the above-mentioned jurisdictions from a critical standpoint.

Whenever relevant, comparisons with the US and Europe will also be drawn due to

the relevance of those legal systems.

Ultimately, I argue that in the Brazilian, South African and Inter-American

jurisprudences, expansive interpretation contributes to the advancement of protective

states, giving judges the interpretative tools to read positive obligations in prima facie

negative rights. Furthermore, I argue that this leads to two problems: first, expansive

interpretation is often described in the case law as an exercise of judicial deference to

political branches while in fact it is not (justifiably or not); and, second, expansive

interpretation is also qualified by jurisprudence as generous to fundamental rights,

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while in fact it can, particularly in morally controversial cases such as those related to

gender identity and sexual orientation, advance paternalism and other moral

conceptions on autonomy which are nowhere found in the legal text.

As such, the argument advanced in this paper avoids two extremes. From one

of those extremes, one could argue that if one wants to move the state towards a more

protective function, one must (meaning, logically required to) embrace transformative

methods of interpretation. In this line, some scholars might as well argue, as Klare did

in post-apartheid South Africa in 1998, that transformative constitutions compel

“honesty about and critical understanding of the plasticity of legal interpretation” 5

and thus, still for Klare, “we cannot move far in that direction [of transformative

constitutionalism] without rethinking the role of legal culture and radically

transforming our understanding of legal interpretation.” 6 Klare’s idea of a

transformative constitutionalism (a post-liberal project of law-driven social

transformation), controversial even among South African scholars 7 , assumes a

specific purposive interpretative theory and practice, which subjects legal

interpretation to a larger goal of social change.

Yet, this is not always the case. From the other extreme, it is plausible to argue

first, as Klarman sustained in 2013 in relation to the US constitutional jurisprudence

on race and sexual orientation, that in major constitutional rights cases such as, taking

two US cases, Brown8 (which in 1954 ended race-based separate but equal doctrine in

5 Karl Klare, “Legal Culture and Transformative Constitutionalism,” South African Journal on Human Rights 14 (1998): p. 187. 6 Ibid., p. 151. 7 Theunis Roux, “Transformative Constitutionalism and The Best Interpretation of the South African Constitution: Distinction Without a Difference?,” Stellenbosch Law Review 20 (2009): pp. 258–285; Karin van Marle, “Transformative Constitutionalism As/And Critique,” Stellenbosch Law Review 20, no. 2 (2009): pp. 286–301. 8 US Supreme Court, Brown v. Board of Education (Brown 1), 347 U.S. 483 (1954).

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public education) and Windsor9 (which in 2013 put an end to the federal definition of

marriage that excluded state-sanctioned same-sex marriages), doctrine often matters

little. In his words, “judging from Brown and Windsor, constitutional doctrine seems

not to matter very much to the Justices - at least not in landmark cases about which

they probably have strong intuitions of fairness and right.”10

Second, not only doctrine often matters little, but when it does matter, great

legal developments with large potential social impact occurs via traditional means of

interpretation, not transformative ones. “Liberty does not find refuge in a

jurisprudence of doubt”11, wrote a sharply divided US Supreme Court in Planned

Parenthood of Southeastern Pa. v. Casey (1992), to reaffirm its commitment to

woman’s right to terminate pregnancy until fetus viability. Despite the controversial

issue, commitment to stare decisis (and not a fuzzy, innovate mean of interpretation)

was the bedrock of the Casey decision.

Bearing these two extremes in mind, the argument exposed above and

hereafter developed is a balanced one. It neither sustains that expansive interpretation

is required for jurisprudential transformation nor it argues that those transformations

quite often dispense with such interpretation. Rather, using cases from the above

mentioned jurisdictions, I argue that expansive interpretation ought to be analyzed in

the realm of potentiality: expansive interpretation suits well with (meaning, it

provides a powerful tool towards) an over protective jurisprudence where the judicial

department might interfere in the political branches by saying it is not doing so, and

might impose paternalist moral views, by saying it is being generous. 9 US Supreme Court, United States v. Windsor, 570 U.S. 12 (2013). 10 Michael J. Klarman, “Windsor and Brown: Marriage Equality and Racial Equality,” Harvard Law Review 127 (2013): 142. 11 US Supreme Court, Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), p. 844 (Joint Opinion of Justices O’Connor, Kennedy, and Souter).

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1. Presenting Three Methods of Non-‐Textualist Expansive Interpretation

As expansive interpretation of normative text, being it a constitution or human rights

treaty, is regularly associated with expanding state obligations from negative to

positive ones. Note the US example. “The [Due Process] Clause is phrased as a

limitation on the State's power to act, not as a guarantee of certain minimal levels of

safety and security. It forbids the State itself to deprive individuals of life, liberty, or

property without ‘due process of law,’ but its language cannot fairly be extended to

impose an affirmative obligation on the State to ensure that those interests do not

come to harm through other means. Nor does history support such an expansive

reading of the constitutional text.”12 With these words, Justice Rehnquist in the

famous DeShaney case from 1989 stressed that US constitutional law (in what is

known as ‘state action doctrine’) 13 does not encompass horizontal effect

(Drittwirkung) of rights to private parties (in the DeShaney case, father/son), or a state

duty to protect (Schutzpflichten, in German constitutional law14).

More importantly for the purpose of the present paper, beyond the rejection by

the DeShaney Court of a duty to protect (with the limited exception of state custody

recognized by that Court itself), it is vital to notice a link, expressly tracked by Justice

Rehnquist, between what he calls in DeShaney an ‘expansive reading of the

constitutional text’ and positive obligations. Of course, one could say that this is the

12 US Supreme Court, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, p. 195 (Opinion of the Court, Justice Rehnquist). 13 Kaarlo Tuori, “The Uneasy Relation Between the Rechtsstaat and the Security Constitution,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, p. 5. 14 A more comprehensive view of German constitutional law concepts of Drittwirkung and Schutzpflichten can be found at: Oliver Lepsius, “Duties to Protect: Chances and Challenges,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, pp. 1–6.

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case in the US Supreme Court and, to a lesser extent, in the European Court of

Human Rights, i.e. a need for expansive interpretation as a means to achieve judicial

recognition of positive obligations, for a very practical and straightforward reason:

there is no solid basis for a general duty to protect (let alone, horizontal application)

in their respective normative texts (US Constitution and the European Convention on

Human Rights).

Justice Rehnquist is right in pointing out, as he did in DeShaney, that generally

rights provisions in the US Constitution are framed (meaning, linguistic structured) as

limitations to State power. Even the dissenters in DeShaney namely Justices Brennan,

Marshall and Blackmun15, did not contest Justice Rehnquist’s argument (they would

have a hard time doing it): they rather shifted, cleverly, the issue from one of state

inaction to evaluation of what the state actually did and, thus, how the state could be

held liable in this narrower and traditional way, meaning: by its very actions, not

inaction.

Likewise, in the case of European Court of Human Rights, with exception of

certain explicit textual references to positive obligations16 in the text of the European

15 For the dissenters in DeShaney, “The Court's baseline is the absence of positive rights in the Constitution and a concomitant suspicion of any claim that seems to depend on such rights. From this perspective, the DeShaneys' claim is first and foremost about inaction (the failure, here, of respondents to take steps to protect Joshua), and only tangentially about action (the establishment of a state program specifically designed to help children like Joshua). And from this perspective, holding these Wisconsin officials liable -- where the only difference between this case and one involving a general claim to protective services is Wisconsin's establishment and operation of a program to protect children -- would seem to punish an effort that we should seek to promote. I would begin from the opposite direction. I would focus first on the action that Wisconsin has taken with respect to Joshua and children like him, rather than on the actions that the State failed to take. Such a method is not new to this Court.” US Supreme Court, DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, p. 204-205 (Dissenting Opinion of Justices Brennan, Marshall and Blackmun). 16 As mentioned by Bossuyt, examples of explicit references to positive obligations in the European Convention on Human Rights are: “the obligation to protect the right to life (Art. 2); the obligation to provide prison conditions which are not inhuman (Art. 3); the obligation to provide courts, legal aid and translators (Art. 6); the obligation to hold free elections (Art. 3 Protocol 1)” (Marc Bossuyt and Willem Verrijdt, “Positive Obligations and the Role of the Court of Strasbourg,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, n. 5).

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Convention on Human Rights, its wording is essentially framed in negative terms.

Yet, unlike in the US, the European Court of Human Rights (hereafter, ECtHR) has

applied a more expansive reading of the Convention, in particular after the

1968 Belgian Linguistic case 17 , to read “positive obligations to virtually all

Convention rights, regardless of their formulation.” 18 Furthermore, Bossuyt and

Verrijdt also emphasize that, as far as ECtHR jurisprudence is concerned, “later case

law, however, still mentions Article 1 of the Convention and grounds the positive

obligation doctrine in the “practical and effective rights” and “living instrument”

doctrines”19.

In sum, the US and the ECtHR jurisprudences have stressed the link between

expansive interpretation and the recognition of positive obligations, either to reject

such expansive approach (the US case) or, in contrary, to accepted it (the ECtHR

case). Moreover, the comparative analysis above highlights that, like in the case of

Canada, the ECtHR has referred to the living nature of the convention in order to use

expansive interpretation to foster recognition of positive obligations.

What follows hereafter is the description of three legal systems where, unlike

in ECtHR and in the US, there is textual support in their normative documents for

positive obligations, and still their respective apex courts have made use of expansive

methods of interpretation. The explosive combination of these two features, namely:

expansive interpretation and textual commitment to positive obligations, lead to the a

range of criticism, which will be analyzed in two fronts in the last part of this essay.

For now, I will describe these three methods of expansive interpretation used by apex 17 European Court of Human Rights, Case “Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium”, Application no 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64, decided on 23 July 1968. 18 Marc Bossuyt and Willem Verrijdt, p. 4. 19 Ibid, p. 4.

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courts in Brazil and South Africa as well as by the Inter-American Court of Human

Rights at the regional level.

1.1. Interpretation According to the Constitution in the Brazilian Constitutional Jurisprudence

The post-dictatorship Federal Constitution in Brazil, adopted in 1988, includes what

contemporary constitutional literature in that country defines, in Vieira’s words, a

“generous bill of rights”20, both in terms of the number of rights therein established

and in relation to their wide range, from civil and political rights to economic, social

and cultural rights; from individual rights to collective ones. Only its Article 5 (on

fundamental individual and collective rights) contains seventy-three subparagraphs,

each of them including one or more rights, let alone other provisions of the

constitution recognizing social rights such as its Articles 6 and 7.21 Put simply, as far

as the narrowness of the bill of rights is concerned, in nothing the Brazilian Bill of

Rights resemble the US or European regional counterparts as described above.

Brazilian judicial review system is mixed: it is composed of individual case-

by-case system, decentralized, where any court of any instance has the power to

decline to apply certain legislative act or executive order on constitutional grounds,

along with a centralized system where the country’s apex court, the STF can receive

originally or via appeal constitutional cases, whose decisions will bind all political

branches and lower courts.22

20 Oscar Vilhena Vieira, “Public Interest Law: A Brazilian Perspective,” UCLA Journal of International Law and Foregn Affairs 13 (2008): p. 221. 21 For an official English translation of the 1988 Brazilian Federal Constitution, see the one version available at the webpage of the apex court in Brazil (STF or Supreme Federal Tribunal) at: http://www.stf.jus.br/repositorio/cms/portalStfInternacional/portalStfSobreCorte_en_us/anexo/constituicao_ingles_3ed2010.pdf. Last accessed on: January 8th, 2014. 22 For more details on Brazilian judicial system, see: Keith S. Rosenn, “Judicial Review in Brazil: Developments Under the 1988 Constitution,” Southwestern Journal of Law and Trade in the Americas

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In its exercise of constitutional review, one of the techniques established by

the law regulating the centralized constitutional review procedure before the STF and

regularly used by the Court in its case law is the so-called “interpretation according to

the Constitution.”23 Interpretation according to the Constitution, as defined by Afonso

da Silva, refers to the cases “when there is more than one possible interpretation of a

legal device, [thus] preference should be given to that interpretation which is

according to the constitution.”24

As it reads, interpretation according to the Constitution seems a harmless

instrument, even an obvious one. Yet, this is not the case in the Brazilian practice. Of

course, one might say that while conducting constitutional review courts must (as of

judicial duty) present an interpretation of the concrete case in accordance with the

constitutional text. Put in those terms, this is not what ‘interpretation according to the

Constitution’ means in the Brazilian context. This institute assumes two conditions:

(i) the law whose constitutionality has been challenged contains a plurality of

meanings, i.e. the judge can plausibly present more than one meaning to the same

legal text; (ii) one or more of those meanings is to be considered in accordance with

the Constitution. Ultimately, as Afonso da Silva, ‘interpretation according to the

Constitution’ is more about interpreting ordinary laws than the Constitution.25

Yet, while agreeing with Afonso da Silva from a technical perspective, one

must bear in mind that the practice of the Brazilian STF in conducting interpretation

7 (2000): 291; Keith S Rosenn, “Procedural Protection of Constitutional Rights in Brazil,” The American Journal of Comparative Law 59 (2011): 1009–1050. 23 Article 28, Law No. 9,868 from 1999). Full text available at: http://www.planalto.gov.br/ccivil_03/leis/l9868.htm. Last accessed on: January 8th, 2014. 24 Virgílio Afonso da Silva, “Interpretação Conforme a Constituição: Entre a Trivialidade e a Centralização Judicial [Interpretation According to the Constitution: Between Triviality and Judicial Centralization],” Revista Direito GV 2, no. 1 (2006): p. 192. Unless otherwise indicated, I translated all works originally in Portuguese into English. 25 Ibid., pp. 191–2.

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according to the Constitution, especially in hard cases such as the one on same-sex

unions (see next section, Part 2), shows that the choice of using this instrument by the

Court reveals a particular understanding of the constitution, one that thinks that

judges’ role in a constitutional democracy is somehow creative, and thus expansive

methods of interpretation such as this one fits like a glove. As Barak puts it, in an

audacious way: “The creation of a new norm - to be binding on all courts by the rule

of precedent-is the main function of the supreme court in a democracy. Such creation

involves discretion. The judge of a supreme court is not a mirror, passively reflecting

the image of the law. He is an artist, creating the picture with his or her own hands.

He is ‘legislating’-engaging in ‘judicial legislation’.”26

During the conference 21st ‘Individual vs. State’ held at the Central European

University in Budapest between 25-26 October, 2013, to which this paper is

presented, one of the lecturers make a comment affirming that ‘interpretation

according to the Constitution’ is a non-interpretation, i.e. it is just a creative function.

Yet, this practice is more common in comparative constitutional adjudication than it

might seem at first for those only familiar with US constitutional system. Besides

being prominent in Brazil and Switzerland, as Afonso da Silva recalls, this method is

also exercised in “Portugal, Italy, Austria, Colombia, Chile, Canada, among others.”27

Ultimately, what the Brazilian doctrine and practice of ‘interpretation

according to the Constitution’ adds to the spectrum of expansive interpretation is the

notion that part of the judges’ job is to ‘save’ certain law from being declared

unconstitutional, specially in countries like Brazil where there is constitutional review

26 Aharon Barak, “The Role of a Supreme Court in a Democracy,” Hastings Law Journal 53 (2002): pp. 1205–1206. 27 da Silva, “Interpretação Conforme a Constituição: Entre a Trivialidade e a Centralização Judicial [Interpretation According to the Constitution: Between Triviality and Judicial Centralization],” p. 193.

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of laws in abstract, when there is a plurality of meanings to the legal text and one of

those meanings can be judicially constructed as constitutional. This apparently

deferential perspective, deferential to the political branches, will be more closely

scrutinized, in the next section (Part 2), in relation to the same-sex unions case from

2011, in order to question how really deferential this approach is.

1.2. Purposive and Generous Interpretation in South African Constitutional Jurisprudence

The post-apartheid 1993 Interim Constitution and the current 1996 Final Constitution

of the Republic of South Africa resemble its Brazilian counterpart in terms of the

wide range and diverse nature of rights therein established. The Interim Constitution

of 1993 actually contained a provision that basically incorporated the doctrine of

‘interpretation according to the Constitution’ (Section 35(2))28, as described above, in

the constitution, although this clause did not survive the Final Constitution of 1996.

From an academic perspective, those jurisdictions (particularly South Africa for

linguistic and historical reasons) occupy prominent space within an emerging

scholarly literature on what Maldonado called ‘constitutionalism of the global

south.’29

Unlike the United States, this global south constitutionalism brings, in very

general lines, what Möller named a ‘global model of constitutional rights’, a model

28 The Section 35(2) of the Interim Constitution from 1993 read as follows: “No law which limits any of the rights entrenched in this Chapter, shall be constitutionally invalid solely by reason of the fact that the wording used prima facie exceeds the limits imposed in this Chapter, provided such a law is reasonably capable of a more restricted interpretation which does not exceed such limits, in which event such law shall be construed as having a meaning in accordance with the said more restricted interpretation.” 29 Daniel Bonilla Maldonado, ed., Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia (Cambridge: Cambridge University Press, 2013). Especially regarding Latin America, see: Roberto Gargarella, Latin American Constitutionalism,1810-2010: The Engine Room of the Constitution (New York: Oxford University Press, 2013).

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which in his words “sees rights as protecting an extremely broad range of interests but

at the same time limitable by recourse to a balancing and proportionality approach.”30

For Möller, furthermore, four elements compose this global model31: wide range of

constitutional rights, acceptance of doctrine of horizontal effect, recognition of

positive duties, and finally a balancing method. It is easy to see the sharp contrast

between this model and the US approach expressed in DeShaney case detailed above.

In South Africa, one of the main ways of expanding the reach of the

constitutional rights is via the so-called ‘generous and purposive interpretation’. The

Constitutional Court of South Africa imported the generous and purposive approach

of constitutional interpretation from Canada. It did so in its very first case, S v. Zuma

and Others32 from 1995, and more importantly made use of this approach in the

Court’s first politically controversial case (on constitutionality of death penalty), State

v Makwanyane and Another 33 , decided also in 1995, under the 1993 Interim

Constitution.

Yet, such purposive and generous approach fits well with the textual rules of

interpretation laid out explicitly in the South African Constitution itself. In the Final

Constitution of 1996, in its Section 39, it is expressly recognized that legal

interpretation must “promote the spirit, purport and objects of the Bill of Rights”,

which in that clause means, for instance, the “values that underlie an open and

democratic society based on human dignity, equality and freedom”.

30 Kai Möller, The Global Model of Constitutional Rights (Oxford: Oxford University Press, 2012), p. 1. 31 Ibid. 32 Constitutional Court of South Africa, S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995), para. 15. 33 Constitutional Court of South Africa, State v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995), para. 9.

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By generous and purposive, it is often meant two things (as the name itself

indicates). First, a provision ought to be read as fulfilling the maximum of its purpose.

This goes to the generous nature of this interpretative exercise. Taken by the

Constitutional Court of South Africa from the Canadian case R. v. Big M Drug Mart

Ltd., decided by the Supreme Court of Canada in 1985, this generous aspect is as

follows described:

“The interpretation should be (…) a generous rather than a legalistic one,

aimed at fulfilling the purpose of the guarantee and securing for individuals

the full benefit of the Charter's protection. At the same time it is important not

to overshoot the actual purpose of the right or freedom in question, but to

recall that the Charter was not enacted in a vacuum, and must therefore ... be

placed in its proper linguistic, philosophic and historical contexts.”34

Second, as far as purposive aspect is concerned, this approach requires that, in

the words of the Supreme Court of Canada, in the same case: “The meaning of a right

or freedom guaranteed by the Charter was to be ascertained by an analysis of the

purpose of such a guarantee; it was to be understood, in other words, in the light of

the interests it was meant to protect.”35 In this sense, a purposive interpretation is to

understand as a reading of a constitutional provision in a teleological way, in relation

to the value or interest protected. As such, as Miller points out, a purposive approach

does not necessarily mean more rights’ protection; it can in fact limit the scope of

certain right36.

34 Supreme Court of Canada, R. v. Big M Drug Mart Ltd.,1 S.C.R. 295 (1985), p. 344. 35 Ibid, same page. 36 As Miller sums up: “Although the Court returns to this passage whenever it gives an account of its interpretive methodology, it tends to reduce it to two points: (1) that interpretation of the Charter should be purposive (in the sense that it should be "understood ... in light of the interests that it was meant to protect"), and (2) that interpretation should be "a generous rather than legalistic one." There

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Yet, taken as a dual approach (purposive and generous), this approach is

framed as giving full realization to constitutional rights. In other words, it is an

expansive reading of constitutional Bill of Rights. In the next section (Part 2), I will

present a South African constitutional case on sex work from 200237, which will

challenge to which extent generous and purposive interpretation lives up to this ideal.

1.3. Open Interpretation in the Inter-‐American Court of Human Rights Finally, the third method of interpretation to be lay out here is the one adopted by the

Inter-American Court of Human Rights (hereafter, ICtHR), in what is often called an

‘expansive’ interpretation by that Court.38 As a regional human rights system, the

ICtHR has its mandate outlined in a treaty, in this case the 1969 American

Convention on Human Rights (‘Pact of San Jose”). In its Article 29, the American

Convention expressly lays out the rules of interpretation for the ICtHR. In that

provision, normative openness of the Inter-American system is clearly established.

According to this provision, in particular:

“No provision of the Convention shall be interpreted as: (…) b. restricting the

enjoyment or exercise of any right or freedom recognized by virtue of the laws

of any State Party or by virtue of another convention to which one of the said

states is a party; c. precluding other rights or guarantees that are inherent in

is a tendency to further collapse these two points into one, as "purposive" interpretation is often wrongly understood as being synonymous with a wide or "generous" interpretation of rights. But, as Hogg highlights (and Dickson C.J. himself notes) there is no necessary connection between a purposive interpretation and a generous one, and the effect of a purposive interpretation may often be to narrow the scope of the right in question.” (Miller, “Beguiled By Metaphors: The ‘Living Tree’ and Originalist Constitutional Interpretation in Canada,” 341. 37 Constitutional Court of South Africa, S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002). 38 Lucas Lixinski, “Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law,” The European Journal of International Law 21, no. 3 (November 01, 2010): pp. 585–604. For a comparative analysis on interpretive approach by regional human rights systems, see:

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the human personality or derived from representative democracy as a form of

government;”

From the outset, it is clear that the interpretation rules of the ICtHR imposes

an expansive interpretation of the rights laid out therein simply because the text is

open to rights recognized in other international documents and implicit rights, and

thus this approach suits well with a protective jurisprudence that heavily emphasizes

positive obligations. As pointed by Burgorgue-Larsen: “This openness to multiple

external references exists to interpret both the content and scope of the rights

guaranteed by the American Convention. In doing so, we can argue that, indirectly,

the Court is organising the rise of positive obligation to the States.” 39

Similarly to South African purposive and generous approach, the ICtHR itself

justifies this approach (beyond its textual commitment to such interpretation) as a

matter of effectiveness, i.e. to enable a full realization of the Convention rights. As

Burgorgue-Larsen continues: “The important idea here is the emphasis on

effectiveness. The Court has stated it will do everything so that the rights enshrined in

the Convention have a practical and effective impact in the highly complex and

violent context of the Latin American reality.”40

Yet, unlike South African and Brazilian methods of constitutional

interpretations, the ICtHR use of extensive interpretive presents an additional problem

simply because its mandate comes from a treaty, in the sense that further changes in

the Convention rights would in principle depend on States’ consent. One way to go

about it is to link the living nature of the treaty to the states’ consensus, i.e. to only

39 Laurence Burgorgue-Larsen, “The Positive Obligations in the Inter-American Case Law,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, vol. 1, 2013, p. 14. 40 Ibid.

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allow major interpretative developments in terms of expanding the Convention rights

once the national systems have, to some degree of consensus, already moved towards

the same direction.

This consensus-based approach is the perspective adopted by the European

Court of Human Rights. One of the critics of the Inter-American method of

interpretation recalls that: “the notion of a ‘ regional consensus ’ has played a much

smaller role in the evolving jurisprudence of the Inter-American Court than in that of

the European Court. With the European system, the criterion of ‘ regional consensus ’

serves both affi rmative and negative functions. The largely consistent treatment of a

human rights issue among member states may indicate the presence of an underlying

European value that guides a more specific interpretation of a treaty right, or its

stricter application.”41

Yet, a further qualitative analysis of the ICtHR jurisprudence suggests that in

practice this Court is shier than it might look like at first. As argued by , after a long

analysis of the ICtHR record, “the expansion of the jurisdiction of the Inter-American

Court, while very tangible, happens within controlled boundaries. The use of foreign

instruments is more often than not a search for external validation rather than an

actual excursion into waters not charted by the American Convention. New

dimensions are added to pre-existing rights, but rarely does the Court actually engage

in creating new rights.”42 This apparent expansionism in terms of interpretation will

be further debate in the case-law below.

41 Gerald L. Neuman, “Import, Export, and Regional Consent in the Inter-American Court of Human Rights,” The European Journal of International Law 19, no. 1 (February 01, 2008): 107. 42 Lixinski, “Treaty Interpretation by the Inter-American Court of Human Rights: Expansionism at the Service of the Unity of International Law,” 604.

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2. Analytical Overview of Three Examples of Protective Jurisprudence: Deference, Paternalism and Schizophrenia

2.1. Judicial Deference or Interference?: Uniões Homoafetivas Case (Brazil)

Positive obligations include ‘obligation of realization’ and ‘obligation of protection’.

The first one, as Bossuyt recalls, includes “the obligations of realization merely oblige

the State to take positive action in order to secure the effective implementation of

human rights”.43 Among them, it is often included the obligation to legislate in certain

area in order to effectively guarantee fundamental rights, such as in the case of the

“obligation to adopt legislation guaranteeing the equal treatment of transsexuals.”44

Meanwhile, the obligation of protection is related to the horizontal application of the

fundamental rights, i.e. protection from other private individuals.

The Brazilian decision holding constitutional same-sex unions illustrate a case

of positive obligation of realization. In 2011, the Supreme Court Tribunal (hereafter,

STF, in its original acronym) held in a unanimous decision45 that the provision in the

Civil Code that expressly recognizes de facto unions as between a man and a woman

should be interpreted as including unions between same-sex couples. The importance

of this decision is twofold: it is the first strong statement of the highest court in Brazil,

after years of litigation at state and federal levels, in favor of same-sex couples, and,

second, the court expressly opened the debate of the legal recognition of marriage

once partners in de facto unions have roughly the same rights as married ones.

43 Marc Bossuyt and Willem Verrijdt, “Positive Obligations and the Role of the Court of Strasbourg,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, p. 6. 44 Ibid., pp. 6–7. 45 Supremo Tribunal Federal do Brasil, ADI No. 4277 (2011).

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Furthermore, the Brazilian case is interesting for this article for its heavy

defense of expansive interpretative approach: the STF articulated, on the basis of right

to substantial equality and dignity, an interpretative approach which contradicts the

very literal text of the law (as defining stable unions as between a man and a woman).

Of course, the STF did so partly for strategic reasons46: this was the only way to hold

constitutional the same-sex unions recognized by some state level courts, i.e. to

bypass the literal text of the law in terms of its gender-specific language.

As recall by Moreira, in relation to this case, “This commitment to equality of

status among social groups denotes an increasing abandonment of formalism as an

interpretive approach. In several passages, the decision affirms the importance of

interpreting the constitutional text as an integrated system of norms. In order to

achieve constitutional goals such as the elimination of social marginalization, the

interpreter must approach the notions of formal and substantive equality as

complementary principles that determine the interpretation of constitutional norms.”47

In this sense, what mattered for the STF Justices was constitutionally grounded

equality concerns over literal interpretation of the legal text (i.e. of the provision of

the Civil Code)

Yet, while reading this STF decision, the reasoning of some separate opinions

is not as smoothly in favor of expansive interpretation as Moreira portraits, despite the

unanimous decision. A key example is the concurring opinion presented by Justice

Gilmar Mendes. In a debate with other justices, Justice Mendes stresses the danger of

46 I use strategic in the sense of the literature that think of judges as rational actors which choose the means in accordance with the aims they seek, rather than merely legal interpreters (legal model) or ideological actors (attitudinal model). About the strategic model, see: Lee Epstein and Jack Knight, The Choices Justices Make (Washington, D.C.: A Division of Congressional Quarterly Inc., 1998). 47 Adilson José Moreira, “We Are Family!: Legal Recognition of Same-Sex Unions in Brazil,” The American Journal of Comparative Law 60 (2012): 1036–1037.

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the “manipulation”48 by the Court of the method of interpretation according to the

Constitution which served as main basis of the decision. Although detailed more in

depth below, this technique decides to ‘save’ a law from being declared

unconstitutional (void), if it is possible to construct at least one interpretation of its

text which is not unconstitutional. For Justice Mendes, there was in this case a

possibility of misuse of this instrument, because the legal text is clear in gender terms,

therefore there was no room for “interpretation according to the Constitution”. In the

end, Justice Mendes only accepted the use by the Court of this legal method for the

argument that such literal interpretation of the legal text has been used in order to

prevent the recognition of the same-sex unions.

The critical point in this debate is the supposed deferential nature of the

chosen interpretative approach. What the debate initiated by Justice Mendes (over the

appropriateness of the method of interpretation according to the constitution) does not

address correctly is whether this method is a matter of interpretation or simply of the

unconstitutionality of the law at stake. The decision reasoning is rather ambiguous: it

innovates by creating the institute of same-sex union, despite textual evidence in the

Constitution itself against it (where de facto unions are also mentioned as union

between man and woman) via a weak, arguably more deferential interpretative

approach. As I argue in the conclusion, the Court reasoning would be better structured

if it had had the courage (like the Constitutional Court of South Africa did in Fourie49

case in relation to same-sex marriage) of imposing a positive obligation to legislate on

the matter while recognizing the same-sex union. In the case of Brazil, this could be

48 Supremo Tribunal Federal do Brasil, ADI No. 4277 (2011), Justice Gilmar Mendes, concurring, page 705. 49 Constitutional Court of South Africa, Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005).

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technically done by declaring right to equality as superior to the restrictive provision

in the Constitution and in the Civil Code.

2.2. Sympathy or Paternalism?: Jordan Case (South Africa)

Another case which illustrates the way expansive interpretation may lead to a

protective jurisprudence that in fact might harm the target group is the case S v.

Jordan,50 decided by the South African Constitutional Court in 2002. This case is a

constitutional challenge to prohibition of sex work as well as brothel-keeping. While

addressing the former issue, the majority opinion written by Justice Ngcobo found

that criminal prohibition of commercial sex does not amount to unfair discrimination

against women.

In its reasoning on this last matter, Justice Ngcobo decision highlights that

stigma on female prostitutes comes from society, not from law51. In his words, “If the

public sees the recipient of reward as being ‘more to blame’ than the ‘client’, and a

conviction carries a greater stigma on the ‘prostitute’ for that reason, that is a social

attitude and not the result of the law. The stigma that attaches to prostitutes attaches to

them not by virtue of their gender, but by virtue of the conduct they engage in. That

stigma attaches to female and male prostitutes alike.”52 In line with this blame-the-

victim kind of autonomy argument53 which justifies the lack of indirect discrimination

50 Constitutional Court of South Africa, S v Jordan and Others (Sex Workers Education and Advocacy Task Force and Others as Amici Curiae (CCT31/01) [2002] ZACC 22; 2002 (6) SA 642; 2002 (11) BCLR 1117 (9 October 2002). 51 It is almost inevitable not to draw a comparison with the overruled case Plessy v. Ferguson, which had in 1896 confirmed the doctrine of separate but equal between white and black people in the US, when it stated that: “ 52 Constitutional Court of South Africa, S v Jordan and Others, para. 16. 53 For Woolman & Botha “The Court’s commitment [in Jordan] to a very strong form of metaphysical autonomy — a form of autonomy that makes all individuals morally and legally culpable for actions that issue ineluctably from their circumstances — fails dramatically the large number of prostitutes who are victims of sexual trafficking.” See: Stu Woolman and Henk Botha, “Constitutional Limitations: Shared Constitutional Interpretation, an Appropriate Normative Framework and Hard

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for the Jordan’s Court, Justice Ngcobo adopts a plain, literal interpretation of the

legal text in order to also not find a direct discrimination, by basing its decision on the

fact that the criminal Act mentions “any person”54, i.e. male or female prostitutes.

Yet, it is well know, as the dissenters Justice O’Regan and Sachs pointed out, the “the

effect of making the prostitute the primary offender directly reinforces a pattern of

sexual stereotyping which is itself in conflict with the principle of gender equality”.55

While adopting a purposive interpretation56, the dissenters in Jordan found an

unfair discrimination against women in the criminalization of commercial work. Yet,

the minority opinion, to use Woolman and Botha expression, “although sympathetic,

offers more of the same”57 in relation the majority of the Court, i.e. they also read the

Constitution through a very limited idea of autonomy. Note the following excerpt:

“Their status as social outcasts cannot be blamed on the law or society entirely. By

engaging in commercial sex work, prostitutes knowingly accept the risk of lowering

their standing in the eyes of the community. In using their bodies as commodities in

the marketplace, they undermine their status and become vulnerable.”58

The key word here is ‘knowingly accept’: while expressing empathy towards

female prostitutes, and while adopting a broader reading of the constitution where

context matters (predominance of women in sex work), the minority reproduces the

Choice,” in Constitutional Conversations, ed. Woolman Stu and Michael Bishop (Cape Town: Pretoria University Law Press, 2008), p. 185. 54 For the majority in Jordan: “Penalising the recipient of the reward only does not constitute unfair discrimination on the grounds of gender. The section penalises “any person” who engages in sex for reward. The section clearly applies to male prostitutes as well as female prostitutes. The section is therefore gender-neutral.” Constitutional Court of South Africa, S v Jordan and Others, para. 9. 55 Constitutional Court of South Africa, S v Jordan and Others, para. 37. 56 Constitutional Court of South Africa, S v Jordan and Others, para. 129. 57 Stu Woolman and Michael Bishop, “State as Pimp: Sexual Slavery in South Africa,” Development Southern Africa 23, no. 3 (2006): p. 388. 58 Constitutional Court of South Africa, S v Jordan and Others, para. 66.

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same prejudicial views of the majority in relation to the stigma of sex work. Even

further, in this regard, the dissenters are even worse than the majority: they sell

sympathy, while providing it with further stigmatization.

To be sure, however, Jordan is not at its face a positive obligation case. It is a

discrimination case, where “the appellants and the amici contended that it

[criminalization of prostitution] strikes only at the prostitute and hence it is

discriminatory” 59, as the majority puts it. Yet, even in the absence of a demand by the

appellants for a state action (in fact, it reminded more a claim for a ‘right to be let

alone’60), note nevertheless the way the majority justify the criminal offence related to

sex work in terms of a (subtle) state obligation to legislate combined with judicial

deference. In Justice Ngcobo found: “The legislature has the responsibility to combat

social ills and where appropriate to use criminal sanctions. In doing so, it must act

consistently with the Constitution. Once the legislature has done so, courts must give

effect to that legislative choice and may not enter into the debate as to whether the

choice made is better or worse than others not chosen.”61

In sum, when one reads the Jordan case, it is striking how both the Court’s

opinion and the dissenters endorse some kind of paternalism. If one conceptualizes

paternalism, with Ben-Purah, as “substituting one’s judgment for another’s, as a

means to promoting one’s own good.”62 Both majority and dissenters rely on a

concept of autonomy, as highlighted by Woolman and Botha63, which assumes that

59 Constitutional Court of South Africa, S v Jordan and Others, para. 8. 60 US Supreme Court, Olmstead v. United States, Justice Brandeis, Dissenting Opinion, p. 478. 61 Constitutional Court of South Africa, S v Jordan and Others, para. 25. 62 Sigal Ben Porath, “Liberty, Paternalism and the Protective State,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, p. 1. 63 In this case, autonomy is used to define a certain responsibility for one’s choices (e.g. being a sex worker) once such choice was made freely. In other words, the social effects of sex work are part of a personal choice. For another view of personal autonomy, which takes into consideration contextual

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looks at the female prostitute as one as stigmatized being, for the majority to justify a

positive obligation to criminalize such work (certain judicial and legislative

paternalism), for the dissenters to confirm the unfair discrimination while

acknowledging that the sex workers’ stigma derive from themselves and not society, a

value judgment which in fact replaces the judgments of the sex workers themselves

(certain judicial paternalism). Furthermore, I emphasize here that, in terms of

reasoning, the most dangerous one is in fact located in the dissenting opinion (apart

from the obvious poor reasoning of the majority): the dissenters shows more

sympathetic towards female prostitutes without actually avoiding promoting their own

paternalist views.

2.3. Schizophrenia: AtaIa Riffo and Daughters v. Chile (ICtHR)

The third case I would like to use to illustrate the third method of expansive

interpretation is Atala Riffo and Daughters v. Chile64, decided by the Inter-American

Court of Human Rights (ICtHR) in 2012, in relation to children’s custody process of a

lesbian mother. Atala Riffo was judicially denied custody of her daughters primarily

due to her sexual orientation. It was the first ever case when the ICtHR decided to

read ‘sexual orientation’ as one of the grounds in the non-discrimination clause of the

Article 1(1) of the American Convention.

In this case, the Court, deciding in favor of the mother applicant, the ICtHR

emphasized three elements of its interpretative method. First, the ICtHR highlighted

the living nature of this document, which leads to the conclusion that the American

factors, see: Möller, “From Limited Government to Personal Autonomy: On the Basis of Fundamental Rights.” 64 Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, (Merits, Reparations and Costs) (2012).

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Convention rights are not fixed. In the ICtHR words in Atala case: “The Court has

established, as has the European Human Rights Court, that human rights treaties are

living instruments, whose interpretation must go hand in hand with evolving times

and current living conditions.”65

Second, the ICtHR attached in Atala its commitment to living treaties to the

following standard: “it is always necessary to choose the alternative that is most

favorable to the protection of the rights enshrined in said treaty”.66 In this sense, the

ICtHR keeps in mind, while expanding the rights of the Convention via interpretation,

of the perspective most favorable in terms of rights protection.

Third, in Atala, and even more importantly, the ICtHR declined to order to the

State a positive obligation to legislate on equality matters or to train its judicial

officials, in contrary to what was requested by the Inter-American Commission.

While acknowledging that “Article 2 of the Convention requires States Parties to

adopt, in accordance with their constitutional processes and the provisions of the

Convention, the legislative or other measures necessary to render effective the rights

and freedoms protected by the Convention”67, the Court in Atala exercised certain

judicial self-restraint. It narrowed the scope of analysis only to the discrimination

aspect of the case. In the Court’s opinion,

In general, the expansive method of interpretation in the ICtHR is not a

novelty. The literature regarding positive obligations and ICtHR has emphasized that

“positive duties have been incorporated into the Inter-American system of human

65 Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, (Merits, Reparations and Costs) (2012), para. 83. 66 Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, (Merits, Reparations and Costs) (2012), para. 84. 67 Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, (Merits, Reparations and Costs) (2012), para. 279..

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rights protection in various legal contexts” 68 , in particular via an expansive

interpretation of the right to life (be mindful of the Latin American history of forced

disappearances and summary executions in and after military dictatorships in the

second half of 20th century). Particularly important are procedural guarantees of

judicial protection, including “due diligence of the investigators and the reasonability

of the time it has taken them carry it out”69, as recalled by Burgorgue-Larsen.

Yet, in relation to Atala case, beyond the discrimination claim, the Court faisls

to provide her with judicial protection. Clearly motivated by judicial self-restraint,

despite its expansive interpretation, the Court explicitly limits the case to the

discrimination aspect, finding no violation of judicial guarantees under Article 8,

especially in order to leave for the national authorities to decide on the custody

matter.70

In opposition to this self-restaint approach, one of the critcis of this decision

has highlighted that the Court could have gone further, in line with its positive

obligation doctrine in relation to positive obligations heavily consolidated in the case

law. As pointed out by, “Nevertheless, it does not seem unreasonable to maintain that,

had the Court asked Chile to re-open the custody proceedings by taking into account

its international obligation not to discriminate on the grounds of the petitioner’s

sexual identity, it would not have acted as a ‘fourth instance’ court, nor would it have

68 Matthias Mahlmann, “Fetters Without Grounds?: Protective Obligations in the Theory of Fundamental Rights,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 2013, 4. 69 Laurence Burgorgue-Larsen, “The Positive Obligations in the Inter-American Case Law,” in The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, vol. 1, 2013, p. 11. 70 “Firstly, the Court considers it necessary to emphasize that the purpose of the present case is not to determine whether the mother or the father offered the three girls a better home” (Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, (Merits, Reparations and Costs) (2012), para. 29).

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overreached its subsidiary and complementary role with regard to the Chilean national

courts.”71

In sum, what the Atala case shows is that even courts considered pro-

protective jurisprudence with expansive interpretation may show judicial self-

restraint, even in circumstances, such as in the judicial protection bit of the Atala case,

such judicial self-restraint is neither mandated by the normative text, nor the

jurisprudence which has for long time, in the ICtHR, recognized positive obligations

in terms of judicial protection due to the very text of the Convention. In this sense,

Atala is an ezchizophrenic decision: it advances a very expansive interpretation in

equality grounds, while offering a overly restraint reading of judicial protection.

3. Conclusion

At this point, it is possible to draw some conclusions on the common features of

‘expansive interpretation’ in the Brazilian and South African constitutional systems as

well as in the Inter-American human rights system at the regional level. Let aside the

differences in the approaches of the interpretation according to the constitution

(Brazil), the generous and purposive interpretation (South Africa) and expansive

interpretation (Inter-American Court); it is possible to draw the following

comparisons.

First, expansive interpretation is about normative openness. Here, I am

concerned with a less theoretical aspect of this statement. Of course, normative

openness can present, inter alia, a more theoretical question of legal pluralism in light

of the use of comparative law and international law in constitutional reasoning. Yet,

71 Laura Magi, “Same-Sex Couples Before the Inter-American System of Human Rights,” in Same-Sex Couples before National, Supranational and International Jurisdictions, ed. Daniele Gallo, Luca Paladini, and Pietro Pustorino (Berlin: Springer, 2014), p. 452.

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herein I am interested in a more practical, and maybe simpler idea that in the

jurisdictions mentioned, via the expansive methods of interpretation described above,

constitutional and treaty texts change by incorporating new norms and possibly new

rights. This is done by expanding the rights originally protected by incorporation of

norms from other treaties (such as in the case of the Inter-American Court) or by

taking into account foreign and international laws (as it is case of the South African

Constitutional Court, which must consider the later and may consider the first, as

required by the Section 39(1) of the Final Constitution). The Brazilian case is trickier:

as seen below, it sells interpretation according to the Constitution as a non-creative

way of just preserving a certain law from being declared unconstitutional, while in

fact is more about normative openness than many of the practice of the other two

jurisdictions.

Second, in relation to this last point, the Courts themselves defend expansive

interpretation often as a modest judicial exercise. Few judges would like the Barak’s

courage to define judicial role is one as creative as of an artist, as here cited few pages

back. In this sense, for being interpretive, those expansive methods at first seem

clearly related to the business as usual of the courts in understanding and applying the

law as it is, not as the law has become after interpretive expansion. Furthermore, those

methods are often presented by Courts not only as modest, but also generous, in

relation to be more protective to the rights established in their respective normative

texts.

Third, expansive interpretation is not only often defended in terms of

normative openness and of an ordinary judicial exercise of interpretation but also as a

requirement of a living normative document. The South African ‘purposive and

generous approach’ relates to the Canadian idea of a ‘living tree’, while the ICtHR

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expressly uses the idea of a living treaty, although it depends less on regional trends

on consensus among State Parties in comparison with the European Court of Human

Rights.

Fourth, expansive interpretation is often justified in terms of matter of

effectiveness of the rights. The ICtHR adopts an approach which attaches expansive

interpretation with the most favorable interpretation for the right’s protection. While a

South African generous approach also carries the idea of promoting to the maximum

extent the fulfillment of the right at stake.

Yet, in relation to the case-law presented above, some further problems

appear, in what I called judicial self-restraint, paternalism and schizophrenia in

relation to Brazil, South Africa and Inter-American case law presented above.

Although it is true, as indicated in the introduction, that expansive interpretation suits

well with an over protective jurisprudence, since (as I assume here) it is a flexible

interpretative tool, the record in the three cases analyzed is mixed. It shows that

courts also might use expansive interpretation while stating it is in fact judicial self-

restraint (Brazil). It further reveals that courts might read expansive interpretation in a

narrow and even symbolic harmful way imposing a paternalist view (South Africa).

And lastly, the record presented above also affirm that courts might in fact be

ambiguous in certain cases: offering expansive interpretation in novel areas, while

lacking to enforce meaningful remedies in old doctrines of judicial protection (Inter-

American system). In this find, finding ‘refuge in a jurisprudence of doubt’ is no easy

path.

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4. REFERENCES

CASE-‐LAW

Brazil Supremo Tribunal Federal do Brasil, ADI No. 4277 (2011).

Canada Supreme Court of Canada, R. v. Big M Drug Mart Ltd.,1 S.C.R. 295, (1985).

Inter-American Human Rights System Inter-American Court of Human Rights, Case of Atala Riffo and Daughters v. Chile, (Merits, Reparations and Costs) (2012).

United States United States Supreme Court, Brown v. Board of Education (Brown 1), 347 U.S. 483 (1954). ______. DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989) ______. Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992) ______. United States v. Windsor, 570 U.S. 12 (2013).

South Africa Constitutional Court of South Africa, Minister of Home Affairs and Another v Fourie and Another (CCT 60/04) [2005] ZACC 19; 2006 (3) BCLR 355 (CC); 2006 (1) SA 524 (CC) (1 December 2005). ______. State v Makwanyane and Another (CCT3/94) [1995] ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391; [1996] 2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995). ______. S v Zuma and Others (CCT5/94) [1995] ZACC 1; 1995 (2) SA 642; 1995 (4) BCLR 401 (SA); 1995 (1) SACR 568; [1996] 2 CHRLD 244 (5 April 1995).

BIBLIOGRAPHY

Barak, Aharon. Purposive Interpretation in Law. Princeton: Princeton University Press, 2005.

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Bossuyt, Marc, and Willem Verrijdt. “Positive Obligations and the Role of the Court of Strasbourg.” In The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 1–20, 2013.

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Da Silva, Virgílio Afonso. “Interpretação Conforme a Constituição: Entre a Trivialidade e a Centralização Judicial [Interpretation According to the Constitution: Between Triviality and Judicial Centralization].” Revista Direito GV 2, no. 1 (2006): 191–210.

Epstein, Lee, and Jack Knight. The Choices Justices Make. Washington, D.C.: A Division of Congressional Quarterly Inc., 1998.

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Lepsius, Oliver. “Duties to Protect: Chances and Challenges.” In The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 1–6, 2013.

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Magi, Laura. “Same-Sex Couples Before the Inter-American System of Human Rights.” In Same-Sex Couples before National, Supranational and International Jurisdictions, edited by Daniele Gallo, Luca Paladini, and Pietro Pustorino, 437–454. Berlin: Springer, 2014.

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Maldonado, Daniel Bonilla, ed. Constitutionalism of the Global South: The Activist Tribunals of India, South Africa, and Colombia. Cambridge: Cambridge University Press, 2013.

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Möller, Kai. “From Limited Government to Personal Autonomy: On the Basis of Fundamental Rights.” In The 21st Annual Individual Vs . the State Conference Liberty in the Protective State, Budapest, October 25-26, 1–11, 2013.

———. The Global Model of Constitutional Rights. Oxford: Oxford University Press, 2012.

Moreira, Adilson José. “We Are Family!: Legal Recognition of Same-Sex Unions in Brazil.” The American Journal of Comparative Law 60 (2012): 1002–1042.

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CEU ID: 112212


Woolman, Stu, and Henk Botha. “Constitutional Limitations: Shared Constitutional Interpretation, an Appropriate Normative Framework and Hard Choice.” In Constitutional Conversations, edited by Woolman Stu and Michael Bishop. Cape Town: Pretoria University Law Press, 2008.

Documents

Paper Conference Ind vs. State Conference 2013 Final 2