Constitutional overperformance: an empirical study of de facto protection of rights with no de jure equivalents

Abstract

In this paper we aim to contribute to the debate on successful enforcement of constitutional rules and its determinants by extending the focus to the phenomenon of constitutional overperformance, which arises when countries that do not include certain de jure rights in their constitutions, nevertheless de facto observe them. Firstly, we provide evidence that constitutional overperformance is a common phenomenon around the globe and it demonstrates high variation. Secondly, we identify factors which contribute to it. In particular, more constitutional overperformance is found in countries with older and less comprehensive constitutions, a high degree of democratization and a more robust civil society, plagued by less political conflict. Spatial interdependence effects are also identified confirming the diffusion of constitutional overperformance between countries. We base the conclusions on an empirical study conducted for a global sample of more than 100 countries.