Bills of Rights

Mark Tushnet

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351573788
• Edition: 1
• Topic: History
• Subtopic: World History
• Index: History

This collection examines the justifications for using bills of rights to protect fundamental human rights and the mechanisms for enforcing provisions in those documents. Articles deal with different forms of judicial enforcement and with legislative enforcement, of rights protected by such documents. The collection includes a road-map for evaluating the effectiveness of these alternative enforcement mechanisms.

Part I

Bills of Rights and Democratic Self-Governance

[1]

A Right-Based Critique of Constitutional Rights^†

JEREMY WALDRON*

1 Introduction

‘Individuals have rights, and there are things no person or group may do to them (without violating their rights).’¹ ‘Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.’² ‘There would be no point in the boast that we respect individual rights unless that involved some sacrifice, and the sacrifice in question must be that we give up whatever marginal benefits our country would receive from overriding these rights when they prove inconvenient.’³

These are familiar propositions of political philosophy. What do they imply about institutions? Should we embody our rights in legalistic formulae and proclaim them in a formal Bill of Rights? Or should we leave them to evolve informally in dialogue among citizens, representatives and officials? How are we to stop rights from being violated? Should we rely on a general spirit of watchfulness in the community, attempting to raise what Mill called ‘a strong barrier of moral conviction’ to protect our liberty?⁴ Or should we also entrust some specific branch of government—the courts, for example—with the task of detecting violations and with the authority to overrule any other agency that commits them?

The advantages of this last approach continue to attract proponents of constitutional reform in the United Kingdom. Ronald Dworkin, for example, has argued that it would forge a decisive link between rights and legality, giving the former much greater prominence in public life. By throwing the authority of the courts behind the idea of rights, the legal system would begin to play ‘a different, more valuable role in society’. Lawyers and judges might take on roles more akin to those of their counterparts in the United States:

The courts, charged with the responsibility of creating … a distinctly British scheme of human rights and liberty, might think more in terms of principle and less in terms of narrow precedent…. Different men and women might then be tempted to the law as a career, and from their ranks a more committed and idealistic generation of judges might emerge, encouraging a further cycle in the renaissance of liberty.⁵

If these judges used their new powers well, Dworkin concludes, governments would no longer be free, as they are now, to treat liberty as a commodity of convenience or ‘to ignore rights that the nation has a solemn obligation to respect’.⁶

What should a political philosopher say about these proposals? In discussions of constitutional reform, I find it commonly assumed that the aims of Charter 88 and similar groups are shared by philosophers whose normative theories of politics are organized around the idea of rights. Surely, it is said, anyone who believes in rights will welcome a proposal to institutionalize a Bill of Rights and give the courts power to strike down legislation that encroaches on basic liberties.⁷

In this paper, I shall question that assumption. I want to develop four main lines of argument. The first is a negative case: I shall show that there is no necessary inference from a right-based position in political philosophy to a commitment to a Bill of Rights as a political institution along with an American-style practice of judicial review.

Secondly, I shall argue that political philosophers should be more aware than other proponents of constitutional reform of the difficulty, complexity, and controversy attending the idea of basic rights. I shall argue that they have reason—grounded in professional humility—to be more than usually hesitant about the enactment of any canonical list of rights, particularly if the aim is to put that canon beyond the scope of political debate and revision.

Thirdly, I shall argue that philosophers who talk about rights should pay much more attention than they do to the processes by which decisions are taken in a community under circumstances of disagreement. Theories of rights need to be complemented by theories of authority, whose function it is to determine how decisions are to be taken when the members of a community disagree about what decision is right. Since we are to assume a context of moral disagreement, a principle such as ‘Let the right decision be made’ cannot form part of an adequate principle of authority. It follows from this that, if people disagree about basic rights (and they do), an adequate theory of authority can neither include nor be qualified by a conception of rights as ‘trumps’ over majoritarian forms of decision-making.

Finally, I shall argue that, in a constitutional regime of the sort envisaged by proponents of Charter 88, the courts will inevitably become the main forum for the revision and adaptation of basic rights in the face of changing circumstances and social controversies. (This of course is an extrapolation from the experience of constitutional politics in the United States.) I shall argue that a theorist of rights should have grave misgivings about this prospect. Some of us think that people have a right to participate in the democratic governance of their community, and that this right is quite deeply connected to the values of autonomy and responsibility that are celebrated in our commitment to other basic liberties. We think moreover that the right to democracy is a right to participate on equal terms in social decisions on issues of high principle and that it is not to be confined to interstitial matters of social and economic policy. I shall argue that our respect for such democratic rights is called seriously into question when proposals are made to shift decisions about the conception and revision of basic rights from the legislature to the courtroom, from the people and their admittedly imperfect representative institutions to a handful of men and women, supposedly of wisdom, learning, virtue and high principle who, it is thought, alone can be trusted to take seriously the great issues that they raise?⁸

2 Right-Based Theories

My first aim is to show that there is no necessary inference from the premises of a right-based moral theory to the desirability of constitutional rights as a particular political arrangement.

What is meant by ‘right-based’ theory? The terminology is adapted from Dworkin’s discussion in Taking Rights Seriously, proposing ‘a tentative initial classification of political theories’ into right-based, duty-based and goal-based types,⁹ The idea is that in any but the most intuitionistic theory, it is possible to distinguish between judgments that are more or less basic, in the sense that the less basic judgments are derivable from or supported by the more basic ones.¹⁰ Sometimes we may reach a level of ‘basic-ness’ below which it is impossible to go—a set of judgments which support other judgments in the theory but which are not themselves supported in a similar way. These will be the fundamental propositions of the theory or, as Dworkin has called them elsewhere, its ‘constitutive’ positions.¹¹ Utilitarians pride themselves on the fact that their moral theory is organized explicitly in this way, and Dworkin’s typology assumes that a structure of that kind can be discerned in many non-utilitarian theories as well.¹²

For the purposes of this article, nothing much hangs on the precise distinction between right-, duty- and goal-based theories. So I shall not go into the detail of Dworkin’s classification.¹³ What I want to work with is the idea that a concern for individual rights may lie in the foundations of a theory, leaving it an open question what those foundations entail at the level of political and constitutional construction.

Opinions differ as to whether the concerns at the basis of a theory of rights are exclusively concerns about freedom, exclusively concerns about independence, exclusively concerns about equality, or whether other material interests and needs may also be accorded basic importance in their own right. I hope to avoid that issue here as well (though it is one of the controversies whose significance I shall discuss later in the article).¹⁴ Different theories will identify different individual rights—to freedom, independence, dignity, etc—as having fundamental and abiding importance, and they will regard a sense of that importance as a general basis for normativity within the theory.

As premises, these concerns are liable to be fairly abstract in character.¹⁵ One would not expect to find propositions like the Fourth Amendment to the US Constitution in the foundations of a theory of rights. A right to the protection of one’s home against unreasonable searches is likely to be based on the importance accorded to a deeper individual interest such as privacy. A right to privacy may in turn be based on even deeper premises about the importance of autonomy and self-governance. Derivative conclusions will then be generated by working out what, in the circumstances of modern society, is required if the deepest interests in this series are to be respected. That is what normative argument amounts to in right-based political philosophy.

Sometimes in the development of such an argument, we may reach intermediate conclusions which enable us to say that some relatively concrete interest must be regarded as important if some deeper interest is to be properly respected. This is where familiar propositions about rights will figure in a well-thought-out political theory. As we move from deep abstract premises to particular concrete recommendations, we may find ourselves saying things like ‘People have a right to free speech’ or ‘Everyone has a right to elementary education’ or ‘Suspects in police custody have a right not to be tortured’. Though these propositions indicate important individual interests, their importance is explained by their deeper connection to other, more abstract interests whose importance is ultimate in the theory.¹⁶

However, right-based theories are not always articulated in a linear structure of this kind, moving from abstract rights through a series of derivative rights, each one supported by and more concrete than the last. Sometimes the implications of abstract premises are teased out in a different structure. John Rawls’s discussion of justice is an example. It seems plausible to say, as Dworkin has argued, that Rawls’s theory is premised on some very deep assumption ‘that individuals have a right to equal concern and respect in the design and administration of the institutions that govern them’.¹⁷ But in trying to see the concrete implications of that premise, Rawls develops his model-theoretic device of the ‘original position’ leading to the choice of two lexically ordered principles to govern the basic structure of a society. At least one of these (the ‘Difference Principle’) is not formulated in terms of rights at all.¹⁸ Maybe the further process of inferring policy recommendations from the Difference Principle will involve some re-introduction of the language of rights.¹⁹ But there is nothing inevitable about that: everything depends on how the deep concerns of the theory are best articulated in the concrete circumstances in which they are applied. The fact that there are rights in the foundations does not mean that there must be rights, so to speak, all the way up.

The point is a general one and can be applied to other types of theory as well. Utilitarianism has, in or near its foundations, a sense that the basic aim of morality is the maximization of utility. Whenever there is a choice of actions, it is better, from the theory’s point of view, that that action be chosen which secures the greatest balance of utility, all things considered. But though we find this ‘act-utilitarian’ formula in the foundations of the theory, it does not follow that the theory’s practical recommendation for men and women in the real world is to adopt an act-utilitarian decision-procedure. ‘Indirect’ utilitarianism suggests that the basic aim may be better served if individuals follow certain rules which they treat more or less as absolute requirements in most of the circumstances they face.²⁰ Indeed, if a goal-based utilitarianism is articulated realistically, it may involve a commitment to rights at the surface even though rights do not figure at all in its deeper premises.²¹ This example shows that we cannot infer much about the practical recommendations of a normative theory from the character of its fundamental premises.²²

3 From Moral Rights to Legal Rights

So far we have considered only the relation between basic and derivative positions within a normative theory. The fact that, in a given theory, the basic premises (or even the intermediate theorems) are best formulated as rights does not show that the derivative recommendations of the theory are best formulated as rights. But suppose, for the sake of argument, that the normative recommendations of a right-based theory are formulated as rights. Can we say ...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Series Preface
• Introduction
• Part I Bills of Rights and Democratic Self–Governance
• Part II Judicial Enforcement of Bills of Rights
• Part III Legislative Enforcement of Bills of Rights
• Name Index