Prohibiting Amendment: the Use of Absolute Rigidity in the Constitutions of the Countries of the World

Abstract

Constitutional amendments are as a rule enacted by special procedures that are more stringent than the procedure required of ordinary legislation. Some constitutions even make use of entrenched clauses which restrict in full the use of amendment; such constitutions, then, introduce what is called in this study "absoluty rigidity" (AR). Mapping the use of AR in the constitutions of countries of the world, this study shows that about one third of the countries have introduced for defined issues and principles a ban on amendment, differences between regions of the world being fairly small and the overall pattern therefore being global rather than territorial. However, more than countries in other regions, African countries are frequent AR-users. In regards to the question why some states resort to AR whereas others do not, findings are that democracies are not as frequent AR-users as are non-democracies; furthermore, diffusion stands out as an important explanatory factor, as evident from an inserted case study of former British colonies which indicates that a distaste of Britain for AR has indeed been transformed to the colonies, almost all of which have avoided the method. Concerning matters that enjoy AR-protection, territorial integraty, fundamental rights and freedmons, and republican and democratic forms of government are among the most frequent. A fair amount of the AR-entrenchements are in an empty-words category, as they are violated, even flagrantly, by the very states that have installed them.Key-words: Comparative law, constitution-making, constitutional rigidity, democratic politics.