The Logic of Liberal Rights

A Study in the Formal Analysis of Legal Discourse

Eric Heinze

• Verlag: Routledge
• Jahr: 2004
• ISBN:
  9781134419821
• Auflage: 1
• Thema: Philosophy
• Thema: Philosophy History & Theory

The Logic of Liberal Rights uses basic logic to develop a model of argument presupposed in all disputes about civil rights and liberties. No prior training in logic is required, as each step is explained. This analysis does not merely apply general logic to legal arguments but is also specifically tailored to the issues of civil rights and liberties. It shows that all arguments about civil rights and liberties presuppose one fixed structure and that there can be no original argument in rights disputes, except within the confines of that structure. Concepts arising in disputes about rights, like 'liberal' or 'democratic', are not mere abstractions but have a fixed and precise character.
This book integrates themes in legal theory, political science and moral philosophy, as well as the philosophy of logic and language. For the advanced scholar, the book provides a model presupposed by leading theoretical schools (liberal and critical, positivist and naturalist). For the student it provides a systematic theory of civil rights and liberties. Examples are drawn from the European Convention in Human Rights but no special knowledge of the Convention is assumed, as the issues analysed arise throughout the world. Such issues include problems of free speech, religious freedom, privacy, torture, unlawful detention and private property.

Part I
Agents

1 Rights and restrictions

Rights are subject to restrictions. This book will examine how arguments are used to strike that balance. Yet the concepts of ‘right’ and ‘restriction’ are broad. We begin by adopting a set of ‘position axioms’ governing the use of those terms. All axioms adopted in this book are compiled in Appendix 1.

1.1 Liberal rights

There is a core of norms which widely recur within regimes of liberal rights, governing such interests as freedom of expression or belief, fair arrest and trial, or humane conditions of detention.¹ Beyond that core, there is no obvious uniformity in the way rights are defined or ascertained. Uncertainty about what is meant by, or included within, ‘liberal rights’ raises questions about the scope of our analysis. Will it apply to all liberal rights? How could such a claim be tested, if there can be no clear agreement on what those rights are?

Consider the following provisions. Article 5 of the German Basic Law provides that ‘freedom of reporting by radio and motion pictures is guaranteed. There shall be no censorship’.² Article 7 of the Dutch Constitution provides that ‘[t]here shall be no prior supervision of the content of a radio or television broadcast’.³ Are those two passages different? Similar? Identical? How would we find out? Through a bilingual dictionary? Through an empirical study? Of what significance would be the fact that both states are parties to the European Convention of Human Rights, or to the International Covenant on Civil and Political Rights?

Generality

One response might be that the two provisions do not express two distinct rights, but rather express only two instances of one broader right, such as a right of free speech, or a right of free expression. But that response merely cloaks the same problem in a new guise, as we must then ask in what ways those two instances are similar or different.

The problem does not arise only with respect to comparisons between jurisdictions. Even within a single jurisdiction, it is not always clear which norm is at issue. In Laskey, what is the right sought by the men? A right to engage in certain sadomasochistic acts? Or a right to engage in certain sexual acts, which would include certain sadomasochistic acts? Or a still broader right of intimate association, which would include certain sexual acts, which would in turn include certain sadomasochistic acts? Or an even broader right of privacy, which would, in turn, include each of those? Such questions raise the familiar issue of the correct level of generality at which a legal norm is to be formulated.⁴

Of course, before the European Court, the men can invoke only norms set forth in the treaty and its protocols.⁵ The answer to our question might then be: ‘the men seek to have the article 8 right of privacy interpreted to protect certain sadomasochistic acts’. Yet that response is purely conventional. It relies on the language which the drafters of the instrument happened to adopt. Only certain historical and cultural circumstances, but nothing in principle, would have prevented the drafters from adopting, say, a more specific ‘right of sexual conduct’ or ‘right of intimate association’. As a functional matter, there may be no difference between saying, in more specific terms, that the men seek ‘a right to engage in certain sadomasochistic acts’, and saying, more broadly, that the men seek ‘protection for certain sadomasochistic acts, as part of the broader article 8 right to privacy’. Similarly, we could combine those two levels of generality by saying that the men seek ‘a right to engage in certain sadomasochistic acts, as part of the broader article 8 right to privacy’.

The point is not that there are never differences among levels of generality. For example, one might want to say that the right at stake in Laskey is part of a broader right of ‘self-expression’. That formulation, however, could raise issues of free expression under article 10, distinct from those raised under article 8. The point is only that different levels of generality do not necessarily comport differences in substance. There are some instances in which they are just two ways of stating the same thing. We therefore adopt:

Axiom of Generality: There is no necessary distinction between a norm in itself and a norm enunciated as part of a broader norm.

By extension, for our purposes there will rarely be any relevant difference between ‘recognising’ and ‘applying’ a right. In most cases, those locutions merely reflect more general (‘applying’) or more specific (‘recognising’) levels of generality. A categorically distinct act of recognition would occur only where there is no higher level of generality.

Recognition

But we still have not answered the initial question: What norms will count as liberal rights for our analysis? For several reasons, it would be impossible to adopt an ‘extensional’ definition of liberal rights – a list which would be both exhaustive and unambiguous. No single list could provide a full account of all jurisdictions maintaining regimes of liberal rights. Even a list for one jurisdiction would be impossible. It would require clarity and agreement on the scope of each right, which is barely to be found in practice, and, in any event, shuns enumeration in list form, as any treatise will demonstrate. Moreover, such a list would exclude future developments. Nor is any ‘intensional’ definition imaginable – a definition which would provide a prior, fixed criterion for identifying which norms do and do not count as liberal rights. In view of endless ambiguities and disagreements surrounding many rather specific rights, we could hardly expect greater clarity or agreement at a higher level of abstraction.

Could we begin with Hohfeldian theory, drawing initial distinctions between concepts of ‘claim-right’, ‘liberty’, ‘immunity’ and ‘power’? In Laskey, the two crucial sets of arguments are the men’s arguments favouring an interpretation of article 8 so as to protect their sadomasochistic conduct, pitted against the state’s arguments opposing that interpretation. It is those arguments which we will seek to examine. As noted in the Introduction, the difference between them does not turn on any Hohfeldian distinction. Similarly, we might want to begin with such deontic categories as ‘obligation’, ‘permission’ and ‘prohibition’. Yet the question of how those terms apply to the interests at stake in a given case can be decided only after some determination of what those interests are.

None of the foregoing approaches provides a satisfactory starting point. Instead, we will adopt a conventional description:

Axiom of Recognition: A right is liberal if it is recognised within a corpus conventionally regarded as a body of liberal rights.

We will examine specimens from an existing corpus of law generally regarded as a corpus of ‘liberal rights’ or ‘civil rights and liberties’, without assuming from the outset any conceptual link between those labels and that corpus. Ascertaining that link will be the aim of the book.

It may appear odd to use the term ‘axiom’ for a principle which depends on a conventionally defined corpus. Yet that step underscores two points. First, it would be difficult to frame a concept of an isolated or free-floating liberal right within an otherwise non-liberal regime. We will see that a right becomes liberal within a comprehensive body of norms. The background theories will arise as a unified network. We will have to analyse a variety of rights in order to identify them. Second, the word ‘recognised’ is key, as illustrated by a trivial example. Assume a legal rule that prohibits detonation of atomic bombs by civilians. Dexter challenges the rule, claiming that he can express his views on life only by detonating atomic bombs. Any arguments on the merits will then consist of Dexter’s assertion that he has a right to detonate atomic bombs pitted against the state’s assertion that he has no such right. For purposes of our model, the right exists as a liberal right in so far as Dexter’s arguments succeed (‘are recognised’), and does not exist in so far as they fail (‘are not recognised’). Every other claim will be treated identically. The triviality or ludicrousness of Dexter’s claim is irrelevant. Yet if the Axiom of Recognition is purely conventional, how can we hope to identify norms that are distinctly ‘liberal’? How are ‘liberal’ rights to be distinguished, say, from ‘ordinary’, private-law rights? That question is examined in Section 1.4.

1.2 Restrictions

The only aim of this study is to ascertain the background theories. That point will be repeated on a number of occasions, as it will justify a series of simplifying assumptions which might otherwise be unwarranted. Those assumptions will include definitions of certain specified terms – like ‘harm’ or ‘consent’ – to allow them to cover a broader range of circumstances than would be customary in ordinary usage, and to do so in a way that will be free of the ambiguities of ordinary language. We can now turn to one example.

Rights can be obstructed in countless ways. In this study, all means of obstructing the exercise of rights will be called restrictions. Just as we are assuming no fixed criteria governing the content of rights, we will assume no fixed criteria governing the range of possible restrictions. Hence, a simplifying principle:

Axiom of Restrictions: A restriction is any means by which a person or entity impedes the right-seeker in, or penalises the right-seeker for, the exercise of an asserted right.

That axiom raises a number of difficulties, which must be addressed in turn.

Variety of ‘restrictions’

The term ‘restriction’, defined so broadly, embraces any number of familiar concepts: ‘deprivation’, ‘denial’, ‘encroachment’, ‘incursion’, ‘infringement’, ‘interference’, ‘limitation’, ‘regulation’. Those terms commonly comport differences in meaning or nuance, and are not all interchangeable in standard legal usage. For example, a ‘deprivation’ may be distinguished from a ‘limitation’ or ‘regulation’ in order to denote a full denial of a right (e.g. where private property is wholly appropriated by the state without compensation) as opposed to a partial constraint (e.g. where discrete restrictions are imposed on the use of property which nonetheless remains profitably usable). Similarly, distinctions between acts and omissions can leave the blanket term ‘restriction’ sounding inapposite when applied to an omission: if a state is accused of not doing enough to give effect to a right, we would not colloquially refer to such inaction as a ‘restriction’. Moreover, in a case of extreme abuse, such as extrajudicial killing or torture, it might sound banal to speak merely of a ‘restriction’ on the corresponding right. However, the term ‘restriction’ will be used to include all of those circumstances, in so far as they all comport a purpose or effect of extinguishing or diminishing the right-seeker’s enjoyment of an asserted right. (The only significant distinction which will be drawn will be between that concept of ‘restriction’ and the concept of ‘breach’ or ‘violation’. The terms ‘breach’ or ‘violation’ will be used to denote a judicial determination about the legality of the restriction.⁶) Such an axiom may seem unwelcome, in so far as it obliterates subtleties which one would have thought to be useful in law. It must be stressed that we are seeking to eliminate that variety of terms not for all purposes, but only for the very narrow purposes of a formal model, for which any distinctions among them are irrelevant.

Completed and prospective acts and omissions

In some cases, a restriction may literally mean that the party seeking to exercise a right is prevented from doing so. For example, people may refrain altogether from committing acts...

Inhaltsverzeichnis

• Cover Page
• Title Page
• Copyright Page
• Acknowledgements
• Cases and sources
• Introduction
• Part I Agents
• Part II Harm
• Part III Consent
• Part IV Forms of argument
• Part V The background theories
• Appendix 1
• Appendix 2
• Appendix 3
• Appendix 4
• Answers to exercises
• Glossary
• Notes
• Bibliography