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© 2010, Hague Academic Coalition, The Hague, The Netherlands and the Authors

Document Type

Book Chapter

Publication Date



Morly Frishman & Sam Muller






Hague Academic Press




This is a tale of two states: one with a constitution and one without. It is a tale that has no moral but ends with the question whether, from the perspective of fundamental human rights, a constitution makes a significant difference? The tale compares the United States of America, a country with a robust, well-entrenched federal Constitution that forms the fundamental compact of its society, with Israel, a country without a formal constitution, but with a set of ‘basic laws’, that operates with two distinct legal systems for the two national entities residing within its jurisdiction.

This chapter can only examine the central question of this tale with a necessarily small and select set of illustrations and will focus on only a few cases and related jurisprudence in the context of some of the harshest questions posed by international human rights. Does a constitutional framework provide some guarantee that fundamental human rights are more likely to be respected than in a non-constitutional legal framework? Further, are rights that are considered jus cogens as a matter of international law – such as the right to be free of torture and the right not to be subjected to arbitrary detention – more likely to be protected under a constitutional or non-constitutional framework?


The Dynamics of Constitutionalism in the Age of Globalisation

What does ‘constitutionalism’ mean in our age of globalisation? In which contexts does the discourse of constitutionalism occur? What factors contribute to the creation of a ‘culture’ of constitutionalism at the nation-state level? And can one talk about constitutionalism beyond the state, for example at the European and international levels?

These are some of the questions that formed the basis for discussion at the Fifth ‘From Peace to Justice’ Conference of the Hague Academic Coalition in May 2008. With the concepts of power and governance becoming more diverse and multi-faceted, the conference considered constitutionalism at the national, European and international levels, exploring from a variety of viewpoints the changing meaning of constitutionalism in today’s globalised world.

Specific to this book:

• Each chapter includes a summary of its content, giving the reader an overview of the subject matter and the questions being discussed

• The summaries are translated into French, making it more accessible to French speakers

• Includes an extended bibliography focusing on constitutionalism; prepared by the Peace Palace Library, it provides interested readers with a useful source for further research

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