The Negotiable Constitution: On the Limitation of Rights

THE NEGOTIABLE CONSTITUTION

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral–political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral–political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral–political questions left underdetermined at the constitutional level. g r Ég o i r e c . n . w e b b e r is Lecturer in Law at the London School of Economics and Political Science. Previously, he served as law clerk to the Honourable Justice Ian Binnie of the Supreme Court of Canada and as senior policy advisor with the Privy Council Office in Canada.

THE NEGOTIABLE CONSTITUTION On the Limitation of Rights

GRÉGOIRE C. N. WEBBER

CAMBRIDGE UNIVERSITY PRESS

Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, São Paulo, Delhi, Dubai, Tokyo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521111232 © Grégoire Webber 2009 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 2009 Printed in the United Kingdom at the University Press, Cambridge A catalogue record for this publication is available from the British Library ISBN 978-0-521-11123-2 Hardback Cambridge University Press has no responsibility for the persistence or accuracy of URLs for external or third-party Internet websites referred to in this publication, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

CONTENTS

Preface and acknowledgements

page vii

Introduction: on the limitation of rights

1

1

The constitution as activity

2

The received approach to the limitation of rights

3

Challenging the age of balancing

87

4

Constituting rights by limitation

116

5

The democratic activity of limiting rights

6

Justifying rights in a free and democratic society Conclusion Bibliography Index

213 218

226

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13 55

147 181

PREFACE AND ACKNOWLEDGEMENTS

This book explores the limitation of constitutional rights. In matters of rights, constitutions proceed largely in abstractions, seeking agreement on grand formulations that abstract away from the controversies of specific rights-claims. Yet, until they undergo a process of limitation, constitutional rights lack justification and sense as claims. The limitation clauses of most domestic and international charters of rights make explicit the process of limitation necessary for translating underdeterminate constitutional rights into determinate rights suitable for application. The argument defended in this book is that the limitation of constitutional rights remains open to re-negotiating by the legislature. It is argued that constitutions for the most part leave the difficult, contested and contingent process of limitation unresolved within the constitution itself and instead, through a limitation clause, authorize the legislature to complete the limitation of constitutional rights. In this way, the constitution, and especially the limitation of constitutional rights, is conceived of as an activity. Because the limitation of constitutional rights is provided by legislation, re-negotiating is always available and may proceed through regular democratic channels. In this way, the constitution, far from being abstracted from democratic activity, is forever negotiable by that very activity. I am grateful to many people who have contributed, in various ways, to the development of this book. Some of the chapters are revised from my doctoral dissertation, others are new. But the general orientation of the argument was developed during my time at the University of Oxford. I begin by thanking my doctoral supervisor, John Finnis, for his invaluable support. He has helped me struggle, far better than I could have done alone, with the ideas explored in this book. I also owe special thanks to Chris McCrudden and my two examiners, Richard Bellamy and Leslie Green, who encouraged me to pursue my project and who challenged me on some of its core premises. I gratefully acknowledge the support offered by the doctoral scholarship I received from the Pierre Elliott vii

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preface and acknowledgements

Trudeau Foundation, the research scholarship from the Government of Quebec’s Fonds québécois de la recherche sur la société et la culture, and the ORS Scholarship from the British Government. In the course of this project, I have incurred many debts. Many have read drafts (sometimes multiple drafts) of chapters; others provided excellent challenges in discussions. I wish to thank, among many others, Larry Alexander, Robert Alexy, Jim Allan, Mark Antaki, Nick Barber, David Beatty, David Bilchitz, François Chevrette, Hugo Cyr, David Dyzenhaus, Richard Ekins, John Gardner, Kate Hofmeyr, Grant Huscroft, Vicki Jackson, Jeff King, Matthias Klatt, Hoi Kong, Mattias Kumm, Roderick Macdonald, Margaret Martin, Bradley Miller, Kai Möller, Denise Réaume, Owen Rees, Graham Reynolds, Steve D Smith, Luc B Tremblay, Jim Tully, Jeremy Webber, Daniel Weinstock, Alison Young, Paul Yowell and Jan van Zyl Smit. I also benefited from the opportunity to present numerous chapters at various discussion groups, conferences and workshops and thank all those who participated. I am grateful to the two anonymous reviewers contacted by Cambridge University Press for offering excellent comments and suggestions. Finally, I thank Finola O’Sullivan and Richard Woodham at the Press, together with their team, for their professionalism throughout. Two special debts are owed. One to Graham Gee for challenging, clarifying, correcting and strengthening the argument at many stages. The other to Stéphanie Vig for making this project more exciting because I could share it with her.

Introduction: on the limitation of rights

What is the relationship between freedom of expression and libel, pornography and political speech? Between the right to life and abortion, euthanasia and assisted suicide? Between the freedoms of religion and conscience and State-funding for religious schools, an official State church, and conscientious objections to military service? With few exceptions, international, constitutional and legislative charters of rights leave the relationship between rights and these (and other) moral–political questions open and unresolved. It is indeed a feature of charters of rights that they proceed largely in abstractions, seeking agreement on grand formulations in a way that avoids the great debates (and disagreements) animating rights. Constitutional rights are for the most part proposed and adopted without being wholly worked out and with their scope and content still to be determined. They are, perhaps, examples of incompletely theorized agreements on a general principle despite the absence of further agreement on the more specific moral–political questions.1 Constitutional rights are formulated in a way that finesses reasonable disagreement about what should be within the scope and content of the right. In this way, those who disagree, for example, on the permissibility of libel and pornography, abortion and euthanasia, State-funded religious schools and conscientious objections can nevertheless agree on freedom of expression, the right to life, and the freedoms of religion and conscience. Through these underdeterminate formulations, constitutional rights can be taken to represent a free and democratic society’s commitment to rights all the while concealing the extent of reasonable disagreement about how to specify these rights in relation to the great moral–political debates alive in the community. With the notable exception of the US Bill of Rights, most domestic and international charters of rights mediate (without resolving) the 1

This is one of three genres of incomplete theorized agreements developed by Cass R. Sunstein in ‘Incompletely Theorized Agreements’ (1995) 108 Harvard Law Review 1733 and Legal Reasoning and Political Conflict (New York: Oxford University Press, 1996).

1

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the negotiable constitution

relationship between underdeterminate rights and debates about their specified scope and content. They do so by way of a limitation clause that sets out the conditions according to which the limitation of a right will be evaluated. These clauses are familiar to students of international instruments, including the Universal Declaration of Human Rights2 and the European Convention on Human Rights;3 constitutional charters of rights, including the Canadian Charter of Rights and Freedoms4 and the South African Bill of Rights;5 and statutory bills of rights, including the British Human Rights Act6 and the New Zealand Bill of Rights.7 Some charters of rights provide a single overarching limitation clause applicable to all rights, whereas others provide a series of right-specific limitation clauses. In turn, some stipulate the permissible ends according to which a right may be limited (public health, morals, the prevention of disorder or crime) whereas others rely on an open-ended reference to a ‘free and democratic society’ without further specification. But beyond these and other slight differences, all limitation clauses seek to mediate the relationship between the charter of rights and the moral–political questions animating reasonable disagreement about what the rights require. In this way, a limitation clause acknowledges the underdeterminacy of constitutional rights all the while framing a process according to which the limitations of rights can be justified in a free and democratic society. Despite differences in legal and political cultures and despite different answers to the reasonable disagreements animating what rights require, a general approach to limitation clauses and to the limitation of rights can be discerned from the work of scholars and judges in jurisdictions ranging from Germany, Canada, Israel, the United Kingdom and New Zealand, among others, including at the level of the European Court of Human Rights. These jurisdictions have all converged on what could be termed the received approach to the limitation of rights. The received approach takes the underdetermined guarantee ‘everyone has a right to φ’ as providing an encompassing right for all to all that is related to φ. Limitless instances of activity are said to be protected by the right, with the result that the charter of rights extends everywhere and to everything. For example, it is often contended that the open-ended guarantee ‘everyone has freedom of expression’ grants to ‘everyone’ the freedom to express anything anytime, 2 3 4 5 6 7

Universal Declaration of Human Rights, art. 29(2). European Convention on Human Rights, arts. 8(2), 9(2), 10(2), 11(2). Canadian Charter of Rights and Freedoms, s 1. Constitution of the Republic of South Africa, s 36(1). Human Rights Act 1998 c 42 (United Kingdom) (incorporating the European Convention). New Zealand Bill of Rights Act 1990 no 109, s 5.

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including the freedom to perjure oneself, publicly to advocate and privately to incite and to give instructions for the violent overthrow of the government, and to disclose State secrets of the highest order. The allencompassing meaning of constitutional rights is said to be settled by the constitution itself – subject to interstitial judicial updating under the guise of re-interpreting the meaning of a ‘living constitution’. The constitution’s meaning is fixed and not subject to challenge or completion by the political process. In turn, the received approach evaluates whether any of the allencompassing rights are limited by an Act of the legislature (or other State action). The political process, and the Acts of the legislature in particular, may comply with or limit a right – there is no in-between. And in so proceeding, the received approach insists that the question of a right’s definition and the question of a right’s limitation are held distinct. Because of the all-encompassing scope of constitutional rights and because free and democratic societies pursue a complex range of conflicting ends, rights are limited everywhere. And because a right is limited by legislation (or other State action) and by the constitution itself, the received approach at times seems to read ‘limitation’ as synonymous with ‘infringement’ or ‘violation’. As a consequence, the legislature (and the State more generally) is constantly infringing or violating constitutional rights; each legislative Act is bound to conflict with one or more of the limitless rights of the constitution. The legislature is thus identified as the antagonist of constitutional rights, even as it seeks to determine whether pornography or libel should be regulated and whether euthanasia and abortion should be prohibited; for each instance of regulation or prohibition conflicts with the constitutional rights to expression and to life which are understood to encompass all possible questions of expression or life. A free and democratic society is thus understood to be both a protector of rights and the site for the unavoidable infringement and violation of these same rights. By mediating the relationship between constitutional rights and legislation regulating or prohibiting an instance of constitutionally protected activity, a limitation clause opens up the possibility that legislation, despite infringing or violating a right, can be upheld as valid. In this way, the received approach views limitation clauses as authorizing restrictions on the otherwise expansive scope of rights or as allowing for important exceptions to otherwise limitless rights.8 A limitation clause allows for the 8

See generally S. Greer The Exceptions to Articles 8 to 11 of the European Convention on Human Rights (Strasbourg: Council of Europe Publishing, 1999); G. Letsas A Theory of Interpretation of the European Convention on Human Rights (New York: Oxford University Press, 2007).

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legislature’s infringement or violation of a right to be ‘saved’ or ‘defended’ in the pursuit of some justifiable end in a free and democratic society, such as national security, public health or morals. As a result, many look upon limitation clauses as causes for some regret; these clauses are, in the words of Dworkin, ‘political compromises’ that burden rights with ‘important qualifications’.9 But for limitation clauses, all rights would enjoy the expansive scope and application provided by the constitution and would not be constrained by legislation pursuing the public interest in violation of constitutional rights. As a result, courts have come to require a ‘high’ burden of justification before legislation infringing or violating a right can be upheld, because any limitation clause ‘inquiry must be premised on an understanding that the impugned limit violates constitutional rights’.10 Indeed, a limitation clause serves as an unfortunate reminder that constitutional rights, despite being all-encompassing at the constitutional level, are not absolute in practice: a limitation clause may sanction their infringement and violation. Although limitation clauses provide little direction on the mode of justification for a right’s infringement or violation, the received approach to the limitation of rights has settled on the regulative ideas of proportionality and balance between harm and benefit to assess legislation (and other State action). Legislation may be valid, despite violating a constitutional right, so long as it satisfies the principle of proportionality and achieves a balance between the good it brings about and the harm caused to the right.11 In this way, despite the long reach of rights, they are controlling only if legislation is disproportional or unbalanced. As against proportional violations and balanced infringements, a constitutional right offers no guarantee. Indeed, according to this methodology, constitutional rights hold no special status. They are, for the most part, relegated to the status of premises in reasoning about proportionality and balance, with the result that the entire constitutional rights-project could be simplified by replacing the catalogue of rights with a single proposition: The legislature shall comply with the principle of proportionality.

9

10 11

R. Dworkin Is Democracy Possible Here? Principles for a New Political Debate (Princeton: Princeton University Press, 2006) 48–9. R v. Oakes [1986] 1 SCR 103 [63] (Supreme Court of Canada). See R. Alexy A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002); D. M. Beatty The Ultimate Rule of Law (New York: Oxford University Press, 2004).

introduction: on the limitation of rights

5

Despite commanding large-scale consensus in Europe and the Commonwealth and beyond, the received approach to the limitation of rights discloses a failure to achieve a proper understanding of rights and their limitation. Through the overzealous definitions of limitless rights which result in rights-claims to everything, the received approach allows a prematurely defined right to trade on the higher prestige of properly defined rights, with the consequence that genuine rights, such as the right of a citizen to criticize government, are put on the same level as exaggerated and unjustifiable claims of right. As a result, the infringement or violation of constitutional rights becomes a common, even unsurprising occurrence – expected, unavoidable, and at times encouraged because obviously justified. Given that the definition of rights is evaluated in abstraction of the other requirements of a free and democratic society, almost all legislation infringes a right and it has become an accepted premise of rights-reasoning that no right is absolute. Any infringement or violation is eligible for validation, so long as it is proportionate and balanced with the good it brings about. Rights are generally opposed to the requirements of public health and morals, national security, and the regulation of disorder and crime; they are defined in abstraction of a free and democratic society, with the consequence that rights-talk has come to impoverish political and moral discourse and to promote expectations so unrealistic that they must (indeed, in many instances, should) fail.12 Constitutional rights are put in relation to a free and democratic society only once infringed or violated and only then by appealing to a ‘balancing of competing interests’ or to the proportionality of ‘values in conflict’. Otherwise, so far as the received approach to the limitation of rights is concerned, rights are reified and abstracted from the context in which they are claimed and the possible justification (or not) for such claims. But this is not as it should be. Perhaps the first indication that the received approach to the limitation of rights proceeds erroneously is disclosed by its lexicon. Despite the key word limitation, the received approach substitutes the vocabulary of ‘limitation’ for ‘infringement’, ‘impairment’, ‘breach’ and ‘violation’, among other similar terms.13 Though strict adherence to constitutional text and recourse to dictionary 12

13

M. A. Glendon Rights Talk: The Impoverishment of Political Discourse (New York: The Free Press, 1991). See Alexy A Theory of Constitutional Rights; Beatty The Ultimate Rule of Law; Greer The Exceptions to Articles 8 to 11 of the European Convention on Human Rights; Letsas A Theory of Interpretation of the European Convention on Human Rights.

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definitions will seldom if ever exhaust the journey into constitutional meaning, it is clear that the key words employed by the received approach do not belong to the same set as the synonyms of ‘limit’, which include ‘border’, ‘boundary’, ‘confines’, ‘demarcation line’, ‘perimeter’, ‘circumscribe’ and ‘define’.14 The words ‘infringement’, ‘impairment’ and ‘violation’ all assume what the synonyms of ‘limit’ seek to determine: namely, the boundary of a right. In other words, the infringement of a right cannot adequately be ascertained until and unless the boundary of the right has been specified. And despite the claim by the received approach that the definition of the underdeterminate constitutional right to φ encompasses all activities relating to φ, a limitation clause, properly understood, directs one to make determinate that which is underdeterminate with regards to what is justifiable in a free and democratic society. It invites one to question, for example, whether perjury and violence-inciting speech really should be considered to be within the scope and content of freedom of expression merely because they are instances of ‘expression’. Despite the consensus surrounding the received approach to the limitation of rights, limitation clauses and the limitation of rights more generally remain understudied and, if the argument defended in this book is valid, they also remain poorly understood. The widely held assumptions that ‘limitation’ can be equated with ‘infringement’ and ‘violation’, that the justification of a right’s limitation proceeds by way of proportionality and balancing, that rights are not absolute and are in opposition to the components of a free and democratic society, and that the court should be the institution responsible for determining the definition of underdeterminate constitutional rights will all be challenged. The status of underdetermined constitutional rights will be interrogated. The received approach considers the scope and content of a constitutional right to be settled at the moment of the constitution’s founding, subject only to such ‘updating’ in meaning as the courts may allow under the guise of a ‘living constitution’. The vocabulary of constitutional discourse is replete with references to a constitution – and constitutional rights – as ‘entrenched’, ‘enshrined’, ‘supreme’ and ‘higher law’. Beyond speaking to the hierarchy of a constitution within the legal order, this vocabulary suggests a certain permanence or unchanging character. Yet, the underdeterminacy of constitutional rights – the 14

Oxford Dictionary of Synonyms and Antonyms (Oxford: Oxford University Press, 2005) ‘limitation’, ‘limit’.

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7

decision to formulate the guarantee of rights at a level of abstraction sufficient to avoid resolving the very moral–political questions that they bear on – should invite one to question just how complete and how finished a constitution really is. A limitation clause assists one in appreciating how constitutional rights are proposed and adopted with contours not wholly worked out. But a limitation clause does more: it invites the authorities constituted by the constitution – and the legislature in particular – to continue the process of a right’s limitation begun by, but ultimately left open in, the constitution. In this way, it signals that the constitutional project is incomplete. Drawing on two principles of political legitimacy – the principle of human rights and the principle of democracy – we will see that a constitution contributes to the political legitimacy of the democratic constitutional State by prescribing democratic rules, procedures and institutions (including legislative assemblies, voting systems and rights of political participation) and by guaranteeing human rights (including the right to life, the right to liberty and freedom of religion). Yet, because citizens negotiating their constitutional arrangements do so in the circumstances of politics – that is, circumstances in which there is ‘the felt need among the members of a certain group for a common framework or decision or course of action on some matter, even in the face of disagreement about what that framework, decision or action should be’15 – they will recognize the contingency and contestability of whatever arrangements they ultimately agree on. The guarantee of constitutional rights is perhaps a paradigmatic case of the recognition and acknowledgement of the circumstances of politics in constitutional negotiations, given that citizens the world-over have tended to avoid settling too much in bills of rights. This is, after all, perhaps one of the reasons why we spend so much time talking about rights, engaging in various theories of ‘interpretation’ to uncover what they have always meant or to prescribe what they should now mean. Indeed, citizens frame and adopt constitutional rights in a manner that leaves the resolution of rights-disputes to a later day. They do so, not in the hope that these disputes will not arise or require resolution, but precisely on the understanding that answers to these disputes will be required; answers that will invite reasonable and persistent disagreement. Moreover, the resolution of these disputes, because they are uncertain, will invite reconsideration with the passage of time, 15

J. Waldron Law and Disagreement (New York: Oxford University Press, 1999) 102 (emphasis added).

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such that they should remain within the citizens’ grasp. For these reasons, citizens have tended to avoid resolving these disputes at the constitutional level and rather left it to the framers’ posterity to evaluate how best to define – that is, to specify, to limit – constitutional rights in relation to the moral–political questions of the day. They have sought, in short, to allow the constitution to allow for a subsequent constitutional settlement. In these many ways, a constitution – and perhaps especially constitutional rights – should not be understood to be a final destination. Democratic arrangements may need to be revisited and changing understandings of human rights may compel different conclusions. In this way, a constitution should be understood to be both architecture (the constituting, distributing, and constraining of governmental power) and activity (the re-negotiating of that which is settled). This viewpoint celebrates the potentially conflicting claims made by the principle of democracy and the principle of human rights and seeks to address them through constitutional activity rather than constitutional settlement. Drawing on the idea at the heart of constitution-making and rounds of constitutional amendments – constitutional negotiating – we will see how the principles of political legitimacy require a constitution (and especially constitutional rights) to remain open for re-negotiating. A constitution should both frame, and be framed by, political activity and a limitation clause provides this portal. A limitation clause confirms that the guarantee of constitutional rights is an unfinished project. By failing to specify which instances of φ are within the constitutional guarantee of a right to φ, a constitution can be understood as leaving to subsequent decision-makers the responsibility for exercising that judgment. A limitation clause confirms that the constitution is open with respect to underdeterminate rights. And by requiring that the limitation of constitutional rights be prescribed by law, a limitation clause can be taken to recognize that, in a democracy, the legislature is the central politically legitimate source of law-making and the legitimate authority for undertaking the constitutional negotiating necessary to complete the specification of rights. In this way, by partaking in the limitation of constitutional rights, the legislature – itself constituted in part by the constitution – completes the constitutional project. By undertaking the limitation of underdeterminate constitutional rights, the legislature continues the unfinished constitutional negotiations. When the legislature specifies constitutional rights, it translates underdeterminate rights into determinate rights. In this way, legislation

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is enabling and constitutive of a right – not, as is generally assumed, merely either in compliance with or in violation or infringement of that right. The concept of a constitutional mandate to implement – that is, to give further effect to – constitutional rights allows for the possibility of an all-embracing account of constitutional rights without expecting that exercise to be undertaken in the constitution itself. Conceived as an activity undertaken and sustained by the legislature, the constitution is not finished at the moment of its founding, framing, ratification or subsequent amendment. It is, rather, forever negotiable through regular democratic channels. And because a constitutional right’s limitation provided by legislation is never beyond re-consideration, the constitution is never beyond re-negotiation. In this way, legislative activity is likened to constitutional activity, but not only when legislation limits (and re-limits) a constitutional right. Because legislation articulating the limitation of a constitutional right is never removed from the possibility of change, the continuing existence of a constitutional right’s legislated limitation is an activity. It is an activity of virtual, even if not actual (but not merely hypothetical) continuing consent to the limitations of constitutional rights now prescribed by legislation. This account of the limitation of constitutional rights seeks to illustrate how, at the constitutional level, rights can (and, indeed, in many respects, should) be underdeterminate while, at the legislative level, rights can be fully determinate. The following chapters progressively build the argument presented here. Chapter 1 articulates the claim that a constitution, and especially constitutional rights, should remain open to re-negotiating. The argument is structured around the idea of political legitimacy in a democratic constitutional State. Drawing on the principle of democracy and the principle of human rights, it is argued that a constitution seeks to approximate a reconciliation of these principles. But because a constitution’s purported reconciliation of political legitimacy is never secure, a constitution should not be conceived of as an end-state; it, and especially constitutional rights, should remain open to challenge through renegotiation. This sets the stage for the argument that a limitation clause leaves constitutional rights open for such re-negotiating and provides, within the constitution itself, a gateway for political activity to shape the constitutional project. Chapter 2 reviews the received approach to the limitation of rights and provides a précis of how limitation clauses, and the limitation of rights more generally, have been approached in Europe and the Commonwealth. It reviews the two stages to constitutional rights

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reasoning: the overly generous definition of a constitutional right coupled with the conclusion that the right has been infringed, followed by an evaluation of the justification of the infringement under a limitation clause. In turn, Chapter 3 challenges the received approach, arguing that the discourse of balancing and proportionality camouflages much of the scholar’s and the court’s thinking underlying rights. This chapter aims to illustrate that proportionality and balancing are overall detrimental to the rights-project, arguing that incommensurability denies balancing and proportionality the accuracy they claim and that the received approach to the limitation of rights attempts (albeit ultimately unsuccessfully) to depoliticize constitutional rights by transforming moral–political debates about the scope and content of rights into claims of measurement and balance. Drawing on the challenge to the received approach initiated in Chapter 3, Chapter 4 defends a conception of rights as conclusions to practical reasoning. It maintains that rights are constituted by their limitation, such that once a right is properly defined – that is, once it is delimited by taking into account all of the moral–political reasons that bear on what the right requires of us and others in a free and democratic society – it is not subject to further evaluations of proportionality or balancing. This draws attention to the fact that the underdeterminate rights of charters of rights are in need of further determination by limitation, without which they are unrecognizable (because unjustifiable) as claims. It is maintained that one should not make claim to a right unless one seeks to conclude an argument as to whether another is under a duty (or disability) with respect to one’s claim of right. Chapter 5 introduces the legislature as the institutional actor responsible for articulating the limitation of underdeterminate constitutional rights. When understood as a constitutional directive for the legislature to specify constitutional rights, a limitation clause requires the legislature to engage with the difficult questions involved in the limitation of constitution rights. In doing so, the legislature must, by legislating, both exercise its legislative authority and establish the constitutional contours of its own political authority. This situates the legislature in a subtle relationship with constitutional rights, which it must both respect and define. In this way, the constitution – and especially constitutional rights – will be shown to be ‘both an independent and a dependent variable in political development’.16 16

K. E. Whittington Constitutional Interpretation: Textual Meaning, Original Intent, and Judicial Review (Lawrence, Kansas: University Press of Kansas, 1999) 214.

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Chapter 6 explores the justification of rights in a free and democratic society. Unlike the received approach to the limitation of rights which calls for the justification of a right’s infringement or violation, the true subject matter of justification is the specification of the right itself. When the legislature undertakes to complete the limitation of an underdeterminate right, it must appeal to reasons justifying the proposed limitation. Indeed, the idea of justification inheres in the very idea of rights, for to claim a right is necessarily to engage a process of justification. With this understanding, a new role for judicial review becomes possible. The court’s responsibility is no longer conceived as evaluating the justification for a right’s infringement or violation, but rather is oriented to reviewing the justifiability of a right’s specification by legislation. The argument of this book concentrates on legislative action, and not administrative or executive action. No doubt, the received approach to the limitation of constitutional rights equally applies to executive and judicial action, even if the references to ‘prescribed by law’ and ‘in accordance with law’ in most limitation clauses makes its application to administrative and executive decisions a question of some contention. Nevertheless, given my focus on the legislature as the principal democratic forum in a free and democratic society, the limitation of constitutional rights by the legislature shall be taken to be the central case for interrogating the role of limitation clauses and the limitation of constitutional rights. Moreover, while the argument will proceed with special reference to constitutional rights and limitation clauses, the claims defended here will be relevant for international and legislative charters of rights as well as for charters of rights unaccompanied by a limitation clause. The question of a right’s limitation is, of course, not relevant only for constitutional rights, but also for rights guaranteed by international and legislative charters of rights. The argument here developed will extend, in many respects, to all charters of rights, irrespective of their status within domestic or international law. Moreover, we will see how all rights are in need of limitation, quite irrespective of the presence or absence of a limitation clause. As a result, it does not follow that absent a limitation clause, an open-ended rights-guarantee is in no need of limitation. The absence of a limitation clause in the US Bill of Rights in no way suggests that the rights guaranteed therein are unlimited. Indeed, the rights guaranteed by the US Constitution are no more and no less specified than the European Convention on Human Rights, the Canadian Charter

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of Rights and Freedoms or the South African Bill of Rights, nor are they any less in need of limitation before they can be justified as claims. As the argument of this book progresses, we will see how a constitution can be ‘both the foundation of democracy and, at the same time, subject to democratic discussion and change’.17 Because reasonable disagreement will never cease and because changing circumstances affect people’s reasoned opinions, the limitation of constitutional rights will be seen to be an ongoing political process such that there will be no single, identifiable moment of constitution-making.18 Through the limitation of underdeterminate rights by the legislature, the constitution will be shown to be created, sustained and amended through the legislative process and resistant to change and succumbing to change through that very process. In this essential way, the constitution that so many hold out to be beyond the grasp of political activity will be shown to be forever negotiable, and none the worse for it. 17

18

J. Tully Strange Multiplicity: Constitutionalism in an Age of Diversity (Cambridge: Cambridge University Press, 1995) 29. See R. Bellamy Political Constitutionalism: A Republican Defence of the Constitutionality of Democracy (Cambridge: Cambridge University Press, 2007).

1 The constitution as activity Introduction The constitution of a democratic constitutional State, and especially constitutional rights, ought to remain open, on an ongoing basis, for democratic re-negotiating. This is the claim defended in this chapter, and throughout this book. The claim is structured around the idea of political legitimacy. It will be contended that a constitution seeks to approximate a reconciliation of two principles of political legitimacy: the principle of democracy and the principle of human rights.1 By assuming that a constitution successfully reconciles these principles, constitutional scholarship has tended to look to a constitution as an end-state: a final reconciliation of the principles of political legitimacy. Democratic activity must operate within constitutional constraints, but should refrain – except exceptionally – from challenging the constitution. This view, I endeavour to show, should be rejected. A constitution should not be understood as a completed project; rather, consistent with political legitimacy, one should conceive of a constitution as an activity. The argument of this chapter, like the argument pursued throughout the chapters of this book, will be developed with special reference to a written constitution. The focus will be on constitutional rights, such as those enumerated in the US Bill of Rights, the Canadian Charter of Rights and Freedoms, the Basic Law for the Federal Republic of Germany, and the Constitution of South Africa. The argument will no doubt extend to other features of a constitution, such as the catalogue of jurisdictional powers awarded to federal and state legislatures. However, the focus of the present inquiry will be on constitutional rights. Constitutional rights are often proposed and adopted ‘with contours not wholly worked out’ and ‘with edges still to be determined’ – and, as will be seen, they are ‘none the worse for that’.2 Constitutional rights 1

2

We will see below that even a constitution that makes no mention of rights can be understood to be an attempted reconciliation of political legitimacy. That said, my focus will be on a constitution that guarantees rights. McCreary County v. American Civil Liberties Union of Kentucky 545 US 844, 875 (2005) (Souter J).

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provisions tend to settle less than some of the more determinate provisions of a constitution; they are in need of further specification before being eligible for application. We will see that the underdeterminate contours of constitutional rights should lead one to conceive of their limitation as an activity. Now, insofar as the contours of the other provisions of a constitution are similarly underdeterminate, they could also be conceived of in this way. But the argument will focus on how the underdeterminacy of constitutional rights leaves the constitution open to further negotiation and re-negotiation. Although the claim of this chapter is structured around the idea of political legitimacy, the chapter is not devoted to an investigation into the concept of political legitimacy in its own right. Rather, I will aim to illustrate that the principle of human rights and the principle of democracy are well grounded in the history of political and constitutional thought and are central to the political legitimacy of the State. Moreover, this chapter does not aim to provide a definitive account of democracy or of human rights. To do so would be contrary to one of the central tenets of the argument defended here; namely, that it is precisely because no definitive account of the principles of political legitimacy or of their reconciliation is readily available that the limitation of rights ought to remain open, on an ongoing basis, to democratic negotiating. As a result, the discussion of political legitimacy will proceed at some level of abstraction. Though this chapter will not avoid taking contestable stands on certain questions, the primary aim is not to elucidate a firm view of the principle of democracy and the principle of human rights. Rather, the aim is to illustrate how these principles lead one to the conclusion that the limitation of rights ought to remain open for re-negotiating. The chapter begins by exploring the two principles of political legitimacy and the prospect of their reconciliation in a constitution. It then evaluates, before rejecting, the view that a constitution is an end-state. Several calls for constitutional re-negotiating – reasons for seeking to re-evaluate a constitution’s purported reconciliation of the principles of political legitimacy – are explored before expounding the view that the legislature ought to be able to assume the status of both a constituted and a constituent authority. I then argue that there are different modes of constitutional change and that one should conceive of a constitution as being in a subtle relationship with a democratic legislature. With this account, I introduce the argument that a limitation clause, such as one finds in the European Convention on Human

the constitution as activity

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Rights, the Canadian Charter of Rights and Freedoms, and the Constitution of South Africa, is a promising avenue for leaving the limitation of constitutional rights open, on an ongoing basis, to democratic re-negotiating.

A Political legitimacy in the democratic constitutional State Political legitimacy in a democratic constitutional State is grounded in (at least)3 two principles: the principle of democracy and the principle of human rights. These two principles are well anchored in the history of political and constitutional thought, even if they have been articulated using different appellations. Political theorists distinguish between different ideas, including Benjamin Constant’s ‘freedom of the ancients’ and ‘freedom of the moderns’ and Isaiah Berlin’s two concepts of liberty.4 More recently, John Rawls and Jürgen Habermas have explored, in their own ways, the relationship between these two principles of political legitimacy.5 Their vocabulary differs in part – of the two, Habermas alone appeals to ‘popular sovereignty and human rights’, ‘democracy and the rule of law’, ‘democracy and constitutionalism’, and ‘public autonomy and private autonomy’ – but the central ideas are similar. Drawing on similar principles, constitutional scholars often appeal to the tension between ‘rights and democracy’ and to the ‘inherent paradox of constitutional democracy’.6 In claiming that the two principles of political legitimacy relied on are well grounded in the history of political and constitutional thought, I do not maintain that Constant, Berlin, Rawls and Habermas, and the many

3

4

5

6

I do not maintain that these are the only two principles of political legitimacy. See J. Tully ‘Introduction’ in A-G. Gagnon and J. Tully (eds) Multinational Democracies (Cambridge: Cambridge University Press, 2001) 3, 12. B. Constant ‘The Liberty of the Ancients Compared with That of the Moderns’ in B. Fontana (ed) Benjamin Constant: Political Writings (Cambridge: Cambridge University Press, 1988); I. Berlin ‘Two Concepts of Liberty’ in H Hardy (ed) Liberty (New York: Oxford University Press, 2002). J. Habermas ‘Reconciliation Through the Public Use of Reason: Remarks on John Rawls’s Political Liberalism’ (1995) 92 Journal of Philosophy 109 (reprinted in C. Cronin and P. D. Greiff (eds) The Inclusion of the Other: Studies in Political Theory (Cambridge: Polity Press, 2005)); J. Rawls ‘Reply to Habermas’ (1995) 92 Journal of Philosophy 132 (reprinted in Political Liberalism (expanded edn, New York: Columbia University Press, 2005)). See J. Habermas ‘Constitutional Democracy: A Paradoxical Union of Contradictory Principles?’ (2001) 29 Political Theory 766.

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political and constitutional scholars who they inspired and who inspired them, all appeal to the same conceptions of these principles or understand these principles as related to questions of political legitimacy. But it remains that contemporary understandings of the democratic constitutional State are structured around these two principles of political legitimacy, in one conceptualization or another. Different political traditions articulate different accounts of these principles, and of their relationship to each other: some give primacy to one or the other, others put one in the service of the other, others still purport to discover an underlying harmony between them. The present aim is not to explore the merits of these different political traditions. Rather, it is to attempt to abstract somewhat, and to explore the consequences of these two principles of political legitimacy for the constitution of a democratic constitutional State. In this way, this chapter does not seek to present a definitive account of democracy or of human rights; as will be seen, that would be counter to the ethos of the argument that the constitution should be an activity. But before continuing, it is important to be reminded that ‘[e]very epoch of political and state thought has conceptions which appear evident to it in a specific sense and, even if also with many misunderstandings and mythologizing, are, without anything further, plausible to great masses’.7 I am conscious that my reliance on and understanding of these two principles of political legitimacy, while anchored in the history of political and constitutional thought, is shaped by the present epoch.

1

Degrees of political legitimacy

The political legitimacy of a State is a question of degree. Now, as with many other key words of political philosophy and constitutional theory, ‘political legitimacy’ often acts as a ‘facilitative equivocation’, a mere ‘placeholder’ for an idea not wholly articulated or conceived.8 Often, legitimacy is appealed to in the narrow sense of ‘legal validity’, as when authority is exercised in conformity with established law.9 However, even ‘if legal validity is a recognisable element in legitimacy, it cannot by any 7

8

9

C. Schmitt The Crisis of Parliamentary Democracy (Cambridge, Mass: The MIT Press, 1988) 22. Steven D. Smith makes this point with respect to the key word ‘constitution’: ‘What Does Constitutional Interpretation Interpret?’ in G. Huscroft (ed) Expounding the Constitution: Essays in Constitutional Theory (New York: Cambridge University Press, 2008). D. Beetham The Legitimation of Power (London: MacMillan Press, 1991) 4.

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means exhaust it’; disputes about legitimacy extend to ‘disagreements about whether the law itself is justifiable, and whether it conforms to moral or political principles that are rationally defensible’.10 Here, legitimacy relates to moral–political justification.11 But legitimacy also extends beyond acting in accordance with justifiable rules: critically, it encompasses ‘the demonstrable expression of consent’.12 Here, legitimacy relates to the idea of consent, both to the rules and, through them, to the exercise of authority.13 Understanding political legitimacy through these three senses suggests that one should avoid reducing one’s vocabulary to the binary terms ‘legitimate’ and ‘illegitimate’. This is not to say that there are no occasions for making the judgment that a State is politically legitimate or illegitimate tout court, but judgments will likely be subtler. The ‘multidimensional character’ of political legitimacy encourages a diversification of legitimacy-speak, including claims that a State lacks legitimacy, has a legitimacy deficit, is suffering from a loss of legitimacy, or is being delegitimated. For example, on a rule-conception of legitimacy, authority exercised in ‘contravention of the rules (expropriation, usurpation, coup d’état), or exercised in a manner that contravenes or exceeds them’ can be said to be illegitimate.14 However, when considering the justification of these very rules, categorical evaluations are less well suited. One is rather better positioned to speak to a ‘lack of legitimacy’ or a ‘legitimacy deficit or weakness’ when rules cannot be justified.15 In turn, whereas consent may confer legitimacy, the withdrawal of consent or the refusal to consent may be conceived of as ‘delegitimation’.16 These subtler uses of the idea of legitimacy defy the constraints of binary terminology. Understood in this way, one may capture the idea that legitimacy is a question of degree and not an ‘all-or-nothing affair’.17 It can be ‘eroded, contested or incomplete’, such that one often will be in a position to qualify assessments of political legitimacy with: ‘to the extent that …’.18 By so framing the discussion, one diversifies the occasions in which talk of political legitimacy is apposite. The concept of political legitimacy is not to be reserved exclusively for the grand questions of the State, such as whether a constituent member’s refusal to consent to major 10 12 14 15 16 18

Beetham Legitimation of Power 4. 11 Beetham Legitimation of Power 5. Beetham Legitimation of Power 15, 18. 13 Beetham Legitimation of Power 12. Beetham Legitimation of Power 16. Beetham Legitimation of Power 17 (emphasis in original). Beetham Legitimation of Power 19. 17 Beetham Legitimation of Power 20. Beetham Legitimation of Power 20.

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constitutional amendments renders the State illegitimate.19 Rather, by appealing to subtler formulations of political legitimacy, one may appeal to the idea of political legitimacy to evaluate more questions of the State, such as the role of the Church of England within the British constitutional order or the unelected status of Britain’s House of Lords and Canada’s Senate within a parliamentary democracy. In addition, one should (as I argue below) understand the limitation of rights as engaging the political legitimacy of the State. Thus, the question whether hate propaganda properly is within the scope of free expression or whether equality requires same-sex couples to have access to civil marriage, to take two examples of the delimitation of rights, engages the political legitimacy of the State. This idea may strike one initially as implausible and asking too much of legitimacy and rights. But properly understood, the idea is both plausible and accurate, as captured by the following negative claim: the improper limitation of a right poses a challenge to the political legitimacy of the State. The challenge may be inconsequential or it may be grave. The State may ignore the challenge, without losing overall political legitimacy. For example, one can understand the relationship between the Australian or New Zealand or Canadian State and their respective Aboriginal peoples in this way: some will contend that the (improper) specification and actualization of Aboriginal rights under these constitutional orders poses a challenge to the political legitimacy of each State. This challenge has been longstanding and, for the most part, remains unanswered. One could say that such a challenge has resulted in a legitimacy deficiency for each State. But one should not say, except polemically and for rhetorical effect, that each State is thereby politically illegitimate. It is in this flexible sense that the concept of political legitimacy is appealed to; namely, as a multifaceted question of degree.

2

The principle of democracy

Self-government, government by the people, popular sovereignty – these ideas are all related to the principle of democracy. The force of this principle of political legitimacy is undeniable. In 1923, Carl Schmitt 19

Consider the absence of consent from the province of Quebec to the Constitution Act 1982: see Reference re Amendment of Canadian Constitution [1981] 1 SCR 753 (Supreme Court of Canada) and Quebec Veto Reference (Reference re Amendment to the Canadian Constitution) [1982] 2 SCR 793 (Supreme Court of Canada).

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wrote that ‘the dominant concept of legitimacy today is in fact democratic’ and that the ‘history of political and state theory in the nineteenth century could be summarized with a single phrase: the triumphal march of democracy’.20 This remains true today.21 For a State to be legitimate according to this principle of political legitimacy, citizens must be more than subjects of law. They must, in some sense, also decide collectively on the law to which they are subject. What it means to decide collectively is by no means obvious, but at a minimum it requires that one have the opportunity to participate in the law-making process, either directly (as when one votes in a referendum) or indirectly (as when one votes for one’s representatives in the legislature). One can consider oneself to have decided, collectively with other citizens, on the laws of the State even if one is in the minority in a referendum or disagrees with a legislative outcome voted on by one’s representatives. The requirement of deciding is satisfied collectively, not individually; it could be said that one’s participation,22 equally with others, in the law-making process is what qualifies one as having decided, collectively with others, on the legislative outcome. One may understand many familiar constitutional rights, including the right to vote, the right to be qualified for membership in a legislative assembly, and the political features of freedom of expression, association, and peaceful assembly, as part of the actualization of the principle of democracy. Although there are some exceptions, many of the constitutional rights associated with the principle of democracy are granted to ‘citizens’, rather than to ‘everyone’, ‘every individual’ or ‘any person’. The actualization of the principle of democracy requires a system of rules, procedures, and institutions to allow citizens to speak and collectively to act. In democratic constitutional States, there are multiple sites for citizen participation, including ‘directly in public spheres, local initiatives, referenda, consultative meetings, political parties, elections, public service, interest groups, dissent, protest, civil disobedience and the occasional rebellion; and indirectly, through … elected representatives, 20 21

22

Schmitt The Crisis of Parliamentary Democracy 30, 22 (footnote omitted). James Tully calls ‘self rule’ ‘the oldest political good in the world’ and identifies ‘popular sovereignty’ as ‘the single most important condition of legitimacy in the contemporary world’: Strange Multiplicity 5, 194. See also Tully ‘Introduction’ 24 and Beetham Legitimation of Power 75: ‘The most common source of legitimacy in contemporary societies is the “people”’. Consider also article 21 of the Universal Declaration of Human Rights, which affirms: ‘The will of the people shall be the basis of the authority of government.’ Or: not-exercised opportunity to participate.

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public servants, courts, “intermediary” organizations, and, especially, media-facilitated discussions’.23 My focus will be on the legislature as the principal democratic forum.24 This focus does not deny the importance (for citizens and for law-making) of less formal modes of citizen participation. Nevertheless, my focus is on citizen participation in formal law-making. The legislature implements (albeit only in part) citizen participation through the election of members to the legislative assembly, the structuring of debates and votes within the assembly, and the transformation of a legislative bill into a law. The legislature is an institution regulated by rules and procedures that allows citizens to participate in law-making.25 Such rules, procedures, and institutional structures are necessary to actualize the principle of democracy. Some have maintained that there is no affront to the principle of democracy if these rules, procedures and institutions are themselves not subject to democratic questioning. These rules, procedures and institutions are, it is maintained, essential to actualizing the principle of democracy and are therefore an exception to the collective decision requirement.26 But this will not do. Citizens, it is true, must act according to rules, procedures and institutions in order to participate and collectively to act. But citizens should also collectively decide over those laws to which they are subject, and the rules, procedures and institutions which structure their participation in collective decision-making are no exception: ‘there are no views of democratic procedures that all can agree best produce majority rule, guarantee free discussion or protect minorities – even if democrats of all persuasions would sign up to these goals in the abstract’.27 Citizens should always ‘be able to take one step back, dissent, and call into question the principles, rules or procedures by which [they are] 23 24

25

26

27

J. Tully ‘The agonic freedom of citizens’ (1999) 28 Economy and Society 161, 171. See Waldron Law and Disagreement 53: ‘The political value most naturally associated with the modern legislature and with the authority of its product – legislation as positive law – is democratic legitimacy’ (emphasis in original). To be clear, I am not claiming that law-making is the only function of the legislature. The legislature also engages in the ‘mobilization of support for the executive …, the venting of grievances, the discussion of national policy, the processes of budgetary negotiation, the ratification of appointments, and so on’ (Waldron Law and Disagreement 28). For an argument along these lines see J. H. Ely Democracy and Distrust: A Theory of Judicial Review (Cambridge, Mass: Harvard University Press, 1980); R. Dworkin Freedom’s Law: The Moral Reading of the American Constitution (Cambridge, Mass: Harvard University Press, 1996) 34; S. Holmes Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995) 167. R. Bellamy Political Constitutionalism 134.

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governed’.28 In order to be actualized, the principle of democracy requires both a set of rules, procedures and institutions and the possibility of calling that set of rules, procedures and institutions into question. This does not take us down the path of infinite regress, whereby the principle of democracy cannot be actualized fully without running counter to the principle of democracy. It is true that the first act of establishing a system of rules, procedures and institutions will be undertaken, at least to some extent, in a manner contrary to the principle of democracy. No amount of mythologizing about what ‘We the people will’ or about theories of hypothetical unanimous consent can mask the reality that the act of establishing the first system of rules, procedures and institutions is undertaken without that system of rules, procedures and institutions. As a result, nothing can mask the reality that the act of establishing the first system of rules, procedures and institutions ‘cannot have been democratically accomplished’.29 That is why, one might say, the making of the original constitution is ‘such a mysterious matter’.30 But the democracy–legitimacy deficit of the first system of rules, procedures and institutions can be addressed over time. If the possibility of changing the system of rules, procedures and institutions is available, citizens can be understood – with the passage of time – to ‘impose’ the system ‘on themselves by means of having a say over the principles, rules and procedures’.31 That is, if the first (or, indeed, any) actualization of the principle of democracy is subject to democratic reconsideration, then the absence of changes to the system of rules, procedures and institutions can be understood as tacit (not hypothetical) consent with respect to the rules, procedures and institutions as presently constituted. This theme, central to the idea of re-negotiating, is further explored below.

3

The principle of human rights

Limited government; individual self-fulfilment; personal autonomy – these ideas are all related to the principle of human rights. The principle 28

29

30

J. Tully ‘The Unfreedom of the Moderns in Comparison to Their Ideals of Constitutional Democracy’ (2002) 65 Modern Law Review 204, 206. See also J. Waldron ‘The Core of the Case Against Judicial Review’ (2006) 115 Yale Law Journal 1346, 1362; Waldron Law and Disagreement 296; J. Waldron ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18, 39–40. J. Rubenfeld Freedom and Time: A Theory of Constitutional Self-Government (New Haven: Yale University Press, 2001) 83. Dworkin Freedom’s Law 34. 31 Tully ‘The Unfreedom of the Moderns’ 205.

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of human rights, like the principle of democracy, has undeniable force. It speaks to the boundaries of what is properly within and outside the scope of State regulation. It denies that the actualization of the principle of democracy requires citizens collectively to decide all matters; it affirms that some matters are properly outside collective decision-making and cannot be affronted without posing a challenge to the legitimacy of the State. This principle of human rights has a different pedigree than the principle of democracy. It does not discriminate between citizens and non-citizens, as does (at least in part) the principle of democracy. The rights actualizing this principle are familiar to almost all charters of human rights and include freedom of conscience and religion, the right to life, liberty and security of the person, the right to be equal before and under the law, and the right to the equal protection and equal benefit of the law without discrimination. They are guaranteed to ‘everyone’ and to ‘every individual’ and not exclusively to ‘every citizen’ as are the rights actualizing the principle of democracy. All individuals, irrespective of their status as visiting foreigners, permanent residents, or citizens, have human rights and the State’s political legitimacy rests on its compliance with this principle. Now, it does not follow that the human rights of all individuals, irrespective of status, will be specified in the same way. But what does follow is that the State cannot deny human rights to an individual without posing a challenge to its political legitimacy. One might say that the principle of human rights speaks to those rights that are – like the principle of human rights itself – ‘democracyindependent’.32 Emphasizing the independence of the principle of human rights from the principle of democracy does not deny that rights guaranteed to actualize the principle of human rights may well facilitate citizen participation in the democratic process. Nor does emphasizing the independence of the principle of human rights from the principle of democracy deny that a legislature may be necessary to actualize fully the principle of human rights. While some rights (such as freedom of conscience) may be capable of full actualization without State regulation, others (such as the right to equality) may require active State regulation in order to be actualized. The ‘independence’ referred to here, insofar as it is apposite, is rather to the effect that one should not seek to derive human rights from democracy, or to derive democracy from human 32

F. I. Michelman ‘Human Rights and the Limits of Constitutional Theory’ (2000) 13 Ratio Juris 63, 66 (footnote omitted).

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rights. As will be seen below, both the principle of human rights and the principle of democracy are co-equal principles for the political legitimacy of a democratic constitutional State. The legislature may seek to actualize the principle of human rights in at least three ways. First, the legislature may demarcate those areas where the State should not regulate conduct, such as an individual’s choice of faith. The exercise of legislative authority here ‘creates and protects the space for these non-political activities and relationships, providing a safety net when they break down’.33 What the minimum demarcation must be or what one ‘cannot give up without offending against the essence of his human nature’ ‘has been, and perhaps always will be, a matter of infinite debate’,34 thereby challenging any purported settlement of that question as contingent and contested. Second, where the legislature does legislate, law should aim to be prospective, general, relatively stable, possible to comply with and made known to individuals, among the other desiderata of the rule of law.35 This allows individuals to organize their affairs; they would be unable to make genuine life-plans of their choosing if the law was retroactive, targeted, unstable, impossible to comply with or secret. Third, the legislature may seek to regulate an individual’s environment to the extent necessary to provide the individual with (more) meaningful opportunities. It does so, for example, by prohibiting unjustified discrimination in employment. This intervention reflects the recognition that respect for rights is not only the duty of the State, but also of its members and that the legislature has a role in promoting the principle of human rights by exercising its authority under the principle of democracy.

4

The constitution of political legitimacy

How can the political legitimacy of a democratic constitutional State be secured? Neither principle of political legitimacy is self-actualizing. Among the different arrangements that may secure the political legitimacy of the 33 34

35

Bellamy Political Constitutionalism 153. Berlin ‘Two Concepts of Liberty’ 173; see also J. Raz ‘Liberalism, Skepticism, and Democracy’ in Ethics in the Public Domain: Essays in the Morality of Law and Politics (New York: Clarendon Press, 1994) 107–8. See J. Finnis Natural Law and Natural Rights (Oxford: Clarendon Press, 1980) 270; L. L. Fuller The Morality of Law (revd edn, New Haven: Yale University Press, 1969) 33–94; J. Raz ‘The Rule of Law and its Virtue’ in The Authority of Law: Essays on Law and Morality (New York: Clarendon Press, 1979).

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State, I will assume that the citizens of a State appeal to a written constitution, including a charter of rights, in their efforts to approximate a reconciliation of the principle of democracy and the principle of human rights.36 The constitution will set out the basic democratic structures of the State, including procedures for electing representatives to the legislature. It will set out certain rights relating to those basic structures, including the right to vote in a legislative election, the right to stand for election, and freedom of political expression, association and assembly. The constitution will also guarantee human rights, including freedom of religion, the right to life, liberty and security of the person, and the right not to be arbitrarily detained or imprisoned. In addition to these rights and democratic structures found in many constitutions of democratic constitutional States, citizens may guarantee other rights they judge to be necessary to secure political legitimacy. A constitution may be considered to be a judgment by citizens (and their representatives) as to what is required to secure the two principles of political legitimacy. It is a multifaceted judgment. First, it is a judgment about how much to decide at the stage of constitution-making and how much to leave to subsequent decision by the constituted authorities. While a constitution seeks to secure the political legitimacy of the State, it by no means purports to do so exclusively. Constitution-makers may well conclude that political legitimacy would be better secured by omitting certain matters from constitutional settlement. Thus, it does not follow that because a constitution does not guarantee a right to privacy that there is no affront to the principle of human rights when a legislature legislates in a manner that violates one’s privacy. For example, neither the US Constitution nor the Constitution of Canada makes reference to a ‘right to privacy’, but it does not follow that the constitution-makers thought that a proper reconciliation of the two principles of political legitimacy excluded a right to privacy. They may have thought the right too obvious to mention. Indeed, several rights, the violation of which would pose a clear challenge to political legitimacy, are absent from many constitutions. For example, not all constitutions of democratic constitutional States guarantee a right to be free from slavery or a right to be free from torture. Now, it is true that these rights could, depending on one’s theory of interpretation or construction, be subsumed within 36

As will be seen, the constitution is not the only way for the State to secure its political legitimacy.

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some other guarantees, such as the right to liberty or security of the person. But it is illuminating that some charters of human rights – such as the European Convention37 and the United Nations Universal Declaration of Human Rights38 – guarantee both the right to liberty and the rights to be free from torture and from slavery. It could, of course, be said that these rights are so obvious as not to require mention, so obvious that no legislature (today) would violate these rights. There is much that is plausible with this account, but then the conclusion must be that some constitutions do not themselves wholly secure the political legitimacy of the State – some responsibility in this regard is left with the legislature (and other actors) not to do that which, on at least one reading, the constitution does not prohibit. Second, a constitution is a judgment about how to actualize each principle of political legitimacy. A constitution is a judgment between different democratic political organizations. For example, there are good but not conclusive reasons in favour of a parliamentary system or a presidential system. There are good but not conclusive reasons in favour of first-past-the-post or proportional representation or other electoral systems. The balance of reasoned opinion over which democratic design should be favoured will continue to shift over time. Reason alone cannot provide the answer; political authority and the exercise of judgment is required. Moreover, a constitution is a judgment between different rights and different conceptions of rights. While scholars are quick to argue in favour of ‘basic liberties’, they seldom agree on which rights should compose the set. Moreover, their different accounts of the basic set of rights ‘may be not just contrasting but also incompatible and incommensurable’.39 Judgment is needed. This judgment is not only one among different, rationally appealing sets of rights, but also about their conception. It is a judgment about whether legislative intervention is a threat to human rights or is necessary for their protection and promotion. Reason does not direct citizens to one rather than the other; citizens must exercise judgment in designing their constitution. Third, a constitution is a judgment about the relationship between the two principles of political legitimacy. What their relationship should be is not self-evident, which is only compounded by the fact that it is far from obvious that there is any possible reconciliation of the two 37 38 39

European Convention on Human Rights, art. 3 (torture), art. 4 (slavery), art. 5 (liberty). Universal Declaration of Human Rights, art. 3 (liberty), art. 4 (slavery), art. 5 (torture). Bellamy Political Constitutionalism 25.

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principles. It is more likely that the two principles are irreconcilably at odds.40 For example, citizens acting pursuant to the principle of democracy may seek to regulate all aspects of the lives of individuals in pursuit of exercising democratic authority, an idea often associated (albeit often with exaggeration)41 with the ‘tyranny of the majority’. By contrast, an individual may claim that the principle of human rights requires a minimalist State empowered only to police contracts made between individuals pursuing their own life-plans, an idea sometimes associated with the ‘countermajoritarian difficulty’.42 Both of these examples are caricatures of the principles of political legitimacy being discussed,43 but they nonetheless speak to the tension between the principle of democracy and the principle of human rights. It would appear that any purported reconciliation between the principle of democracy and the principle of human rights will be a posited approximation of reconciliation; it will be one that is created and postulated, not one that is discovered or rationally commanded. The positing, in a constitution, of the relationship between the principles of political legitimacy is another instance of political judgment. Thus, a constitution seeks to secure the political legitimacy of the State by articulating the judgments of the constitution-makers who, by the exercise of their authority, constitute (in part) the relationship between the principles of political legitimacy. That is to say that the constitution creates and establishes a relationship between the two principles of political legitimacy. In so actualizing both principles and constituting their relationship, a constitution purports to reach a compromise between the principles that approximates reconciliation. How, one then asks, is this approximated reconciliation brought about? 40

41 42

43

Although Berlin’s two concepts of liberty do not line up perfectly with the two principles of political legitimacy here articulated, there is some overlap. Berlin maintains that his two concepts make ‘absolute claims’ that ‘cannot both be fully satisfied’ such that it is often ‘necessary to strike a compromise between them’: Berlin ‘Two Concepts of Liberty’ 212. The same holds, I believe, for the two principles of political legitimacy discussed here. See Waldron ‘The Core of the Case Against Judicial Review’ 1395–1401. This is, of course, not the focus of Alexander Bickel’s use of the term in The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2nd edn, New Haven: Yale University Press, 1986), which revolved around the exercise of judicial review. But it remains that constitutional constraints on the exercise of legislative authority can be understood to be ‘countermajoritarian’. Bruce Ackerman has termed this ‘difficulty’ ‘intertemporal’ given that the majority of yesterday binds the majority of today: see B. A. Ackerman ‘Discovering the Constitution’ (1984) 93 Yale Law Journal 1013, 1045–9. But cf Constant ‘Liberty of the Ancients’.

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A posited approximation of reconciliation should be brought about through a process of citizens negotiating their competing understandings of what is required to secure the political legitimacy of the State. The idea of negotiating is all important. It is, of course, an expression often associated with constitution-making. The founding of a constitution, as well as major constitutional amendments, are said to have been preceded by constitutional negotiations; even the secession of a province from the federation should, according to the Supreme Court of Canada,44 proceed by way of negotiation. How should one understand this apt term? One sense of ‘negotiating’ should immediately be rejected, although it is sometimes manifested in the practice of constitutional negotiations. This sense understands the participants in the negotiations as each speaking to one ‘interest’, or ‘view-point’ or ‘concern’. Here, negotiating is used in a sense analogous to ‘bargaining’ or ‘to do business’, where, for example, a seller attempts to get the highest price for the object of sale whereas the purchaser attempts to get the lowest price.45 The two participants have single interests that oppose each other, as is sometimes thought to characterize labour negotiations. Unfortunately, constitutional negotiations are sometimes understood as proceeding in this manner. It is thus that some constitutional negotiations are at times understood to be between linguistic minorities and majorities (for example, ‘Quebec’ and ‘the rest of Canada’), cultural minorities and majorities (‘women’, ‘Aboriginals’), and other ‘groups’. But none of these ‘groups’ are single-issue groups, nor fairly can they claim to represent their ‘members’ with a univocal voice. Indeed, this conception of constitutional ‘negotiations’ attempts to bifurcate identities, asking citizens to give allegiance to but one ‘interest’ or ‘view-point’ at the constitutional negotiating table. Another sense of ‘negotiating’ should rather be appealed to: communicating with others for the purposes of arranging a shared goal by mutual agreement, by compromise, by settlement. One should begin with the premise that citizens, in all their complexity (that is, with their multiple ‘interests’, ‘view-points’ and ‘concerns’), are engaged in the negotiations. (This premise is then modified according to structures of representative institutions, but remains the starting point and basis for 44 45

Reference re the Secession of Quebec [1998] 2 SCR 217 (Supreme Court of Canada). This is but the simplest of business transactions; many other transactions are concerned with maintaining an ongoing relationship between the transacting parties, which diversifies the ‘interests’, ‘view-points’ and ‘concerns’ at play.

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evaluating the positions taken by representatives in negotiations.) No citizen concerned with the political legitimacy of the State should advocate a single ‘interest’; rather, the citizen should struggle with the relationship between the principle of democracy and the principle of human rights. The citizen should attempt to articulate an understanding of their relationship for the constitution. One might say, not altogether inappropriately, that I, as a citizen, am already engaged in a negotiation before coming to the negotiating table with other citizens. I am myself negotiating the two principles, so to speak, in the same sense that it might be said that I negotiate a difficult path or negotiate my way around an obstacle. This more figurative sense of ‘negotiation’ allows one to capture the idea that citizens come to the negotiating table with their own understanding of what political legitimacy requires. With this understanding, they then should negotiate with each other with a view to securing the political legitimacy of the State; they should not negotiate with each other with the sole purpose of securing their (or their group’s) ‘interest’. One should thus appeal to the idea of negotiating in the following two senses. First, as a citizen, one attempts to negotiate the two principles of political legitimacy by coming to an understanding of what democratic procedures, rights of political participation and human rights protections are necessary to secure the political legitimacy of the State. Second, one shares one’s understanding with other citizens in constitutional negotiations. One may be convinced that another citizen’s understanding will secure better the political legitimacy of the State. Other citizens may forgo their understandings in favour of one’s own. Alternatively, citizens may conclude that a constitution that incorporates different parts of competing understandings is ‘best’. It may be ‘best’ in the overall sense that they agree that a new understanding outlines the favoured relationship between the principles of political legitimacy or it may be ‘best’ in the sense that it is the only compromise they can come to at this time. This account of ‘negotiating’ assumes that there are already rules, procedures and institutions for citizens to negotiate together. I thus omit an account of the first constitutional negotiations and focus on constitutional negotiations that are undertaken in accordance with and with regards to an existing constitution. This focus relates to the argument that a constitution should remain open for re-negotiating. It also speaks to the situation of citizens who are already situated in a constitutional setting; for them, the concern is less with the making of the first constitution but rather with the maintenance of the existing constitution

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so long as it continues to secure political legitimacy. Thus, any negotiating of a constitution is necessarily a re-negotiating of that constitution. It also bears emphasizing that no violence is done to the principle of human rights by the process of constitutional negotiating. The process of constitutional negotiating does not deny that human rights are ‘nonnegotiable’ in the sense that one cannot bargain human rights away. Citizens engage in the democratic process to resolve disputes about, and to struggle with, the difficult reconciliation of (or attempted reconciliation of possibly irreconcilable) principles of political legitimacy. In so doing, they are (or should be) turning their mind to both the principle of human rights and the principle of democracy. Democratic processes will be devoted to determining those very democratic processes, together with other rules, procedures, and institutions, not to mention the scope and content of human rights. Of course, negotiations can result in wrong answers to the question of political legitimacy, but this should highlight the fact that the principles of democracy and human rights remain equiprimordial, even if a democratic process is used. It is always possible for a citizen to dissent and to contest a negotiated reconciliation by arguing that ‘human rights’ are overridden or disrespected in some way or another. In turn, a citizen may dissent and challenge a purported reconciliation of the principles of political legitimacy on the ground that too little is left to democratic participation. The process itself constitutes the authority tasked with determining the relationship between both principles, it does not (indeed, cannot consistently with the principle of human rights) privilege the principle of democracy. In this way, the process of constitutional negotiating does not equate the principle of democracy with the whole of political legitimacy. It does not deny that one’s allegiance to democracy could be lost if a constitutional arrangement violated human rights. What the process of constitutional negotiating insists on is that the actualization of the two principles of political legitimacy is required and does not come about without action. The principle of human rights must comprise part of constitutional negotiations because ‘every affair in need of political regulation should be publicly discussed, though not every legitimate object of public discussion will in fact be politically regulated’.46 In the next section, I explore how these considerations feed into calls for constitutional re-negotiating. But at this stage, I want to insist on the 46

J. Habermas Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (Cambridge: Polity Press, 2004) 313.

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importance of constitutional negotiating for determining, establishing and articulating the actualization of each principle of political legitimacy and the relationship between them. In this way, one should accept that the principle of human rights is in no way undermined by the fact of its being part of constitutional negotiating. This is rather a reflection of the need to ‘complement one’s theory of rights with a theory of authority, [and] not replace the former with the latter’.47

B

The constitution as end-state

Constitutional scholarship tends to assume that a constitution is an endstate, a completed project.48 Being ‘one area of modern politics that has not been democratized over the last three hundred years’,49 a constitution is often conceived in such a way that it is positioned outside the reach of democratic politics, and of change more generally. The vocabulary of constitutional scholarship is replete with references to a constitution as ‘entrenched’, ‘enshrined’, ‘supreme’ and ‘higher law’. While this vocabulary reflects the hierarchy of norms in a constitutional order, it also suggests a certain permanence. Indeed, some constitutions – like the Constitution of India – are said to have a ‘basic structure’ that is beyond amendment and other constitutions – like the Basic Law for the Federal Republic of Germany – have an ‘eternity clause’ which render ‘inadmissible’ certain amendments. 50 For those parts of the constitution not beyond amendment, it is generally assumed that an amendment should be difficult to achieve, something out of the ordinary and altogether exceptional. On this account, the constitution is established at its founding, which serves as the definitive reference point for situating the constitution. As a written instrument, it is the product of a moment, an event; it is not a story. The constitution is an end-state, a completed project, a story the narrative of which began only to end. It achieves permanence and 47 48

49 50

Waldron Law and Disagreement 244. This view is mentioned (even if not always endorsed) in much scholarship, see Beatty The Ultimate Rule of Law 6; Bickel The Least Dangerous Branch 103; Holmes Passions and Constraint 134; J. Raz ‘On the Authority and Interpretation of Constitutions: Some Preliminaries’ in L. Alexander (ed) Constitutionalism: Philosophical Foundations (New York: Cambridge University Press, 1998) 165. Tully Strange Multiplicity 28. See generally G. J. Jacobsohn ‘An unconstitutional constitution? A comparative perspective’ (2006) 4 International Journal of Constitutional Law 460.

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stability and continuity – all of which, in turn, can be referenced back to the constitution’s founding moment. Now, the unchanging, fixed status of a constitution is especially apposite in relation to legislative and political activity. No doubt, much constitutional scholarship is of the view that constitutional meaning evolves, but this evolution is undertaken (indeed, for many constitutional scholars, should be undertaken) primarily if not exclusively through the courts. The general view of constitutional scholarship is that political activity participates in changing the constitution only through the formal means of a constitutional amendment. Other modes for changing constitutional meaning proceed through the courts, as they ‘update’ constitutional meaning so as to prevent today’s generation from being ruled by the ‘dead hand of the past’. But the legislature may not challenge the constitution by purporting to update it. The worlds of democratic and legislative politics and the constitution are separate. Politics operates within the confines of the constitution, acting validly within but invalidly without. To the extent that the legislature acts in a manner contrary to the existing state of constitutional law, it is acting unconstitutionally. The legislature acts in compliance with the constitution or not; it does not participate in changing constitutional meaning. The constitution is the given, the anchor, the reference by which law-making is undertaken. It is only through a special process and by taking some distance from normal legislative activity that the constitution can be contested, challenged and changed.51 The myth associated by much constitutional scholarship with the founders’ act of constitution-making idealizes the constitution. The constitution is out of reach for citizens, in at least two senses. First, citizens today are said (sometimes impliedly, sometimes explicitly, but always with exaggeration) not to have the vision of the founders. The founders charted a perfect course for the State, predicting with unparalleled clarity the demands of political legitimacy. Their wisdom is unmatched today and, thus, the constitution is sometimes assumed to represent the final synthesis of the principles of political legitimacy. Second, the constitution generally is understood to be within the (more or less) exclusive province of the judiciary. Perhaps because citizens today lack the wisdom of the founders, they (and their representatives)

51

A perspective reminiscent of Ackerman’s ‘dualist’ democracy: see B. Ackerman We the People: Foundations (Cambridge, Mass: Belknap Press, 1991).

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must be held to the constitutional arrangements settled by the founders. This division of then and now and of institutional responsibility is fed by the ever-popular distinction between politics (narrowly conceived as the activity of citizens today acting through the legislature) and principle (generously conceived as what the framers achieved then which continues to be protected by the judiciary today). This account no doubt paints a caricature. But this caricature helps one to grasp the assumption that a constitution is an end-state. By assuming that the constitution successfully secures the political legitimacy of the State, the constitution is conceived by much of constitutional scholarship as an end-state that constrains the legislature for the purpose of maintaining political legitimacy. The constitution acts as a shield against laws that would pose a challenge to political legitimacy. Thus, if the legislature enacts a law that prohibits all political speech, the law is unconstitutional: democracy is being exercised in such a way as to challenge the principle of democracy. If the legislature enacts a law that allows the police to enter homes at will, without a warrant, and absent exigent circumstances, the law is unconstitutional: democracy is being exercised in such a way as to challenge the principle of human rights. In this way, an unconstitutional law is a law that poses a challenge to the political legitimacy of the State. To be clear, in subjecting the legislature to constitutional rights, the constitution is not subjecting the principle of democracy to the principle of human rights. Rather, it is subjecting the legislature both to the principle of democracy and to the principle of human rights as actualized by the constitution. This establishes a relationship between the political legitimacy of the State and the political legitimacy of law. A law that violates the constitution poses a challenge to the political legitimacy of the State. A law that complies with a constitution not only does not pose a challenge to the political legitimacy of the State as secured by the constitution, it is also, critically, itself an expression of the State’s political legitimacy: it has been adopted by a legislature designed to actualize the principle of democracy. Thus, by assuming that the constitution perfectly reconciles the principles of political legitimacy, one may equate (as lawyers often do) legality and legitimacy.52 This assumption should be contested.

52

For the dangers of conflating legality with legitimacy, see C. Schmitt Legality and Legitimacy (Durham: Duke University Press, 2004).

the constitution as activity

1

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The historical contingencies of constitutional negotiations

It is a truism that any historical moment is imperfect when measured against an ideal. No exception applies for constitutional negotiations, which bear witness to the imperfection of all acts of constitution-making. An important lesson of history is to highlight that some constitutional rights are historically contingent in the sense that their place in the constitution might very well not have been achieved had constitutional negotiations been undertaken at a different time. Finnis aptly notes that many of the rights guaranteed by the European Convention can be situated in the historical experiences of World War II: The draftsmen of 1950 had before their eyes the Nazi and Fascist lawlessness (often under the cloak of legality), with its withdrawals of all human rights from unfavoured categories of person within the jurisdiction, on grounds such as race, language, religion, political opinion, association within a national minority, and so forth (Arts. 1 and 14); its exterminations (Art. 2), tortures (Art. 3), forced labour (Art. 4), arbitrary and indefinite detentions (Art. 5), mock trials (Art. 6), retroactive criminal laws (Art. 7), arbitrary searches and seizures and disruption of families and family bonds (Art. 8), repression of religious freedom (Art. 9), censorship, jamming and persecution for transmitting opinion or information (Art. 10), destruction of unions and other intermediate or voluntary associations (Art. 11), and suppression of marriage and procreation by some categories of persons (Art. 12). Hence the selection of enumerated rights for protection.53

The mere fact of historical contingency would not, in and of itself, be cause for great comment but for an unfortunate consequence: once a selection of rights is made and a constitution is adopted, the recognition of non-stipulated rights tends to be inhibited.54 An attempt to stay this consequence by stipulating that the guarantee of certain rights and freedoms ‘shall not be construed as denying the existence of any other rights or freedoms’55 has not had sufficient success. Too much political and moral discourse in democratic constitutional States is conceived in the language of constitutional rights. For example, the new wave of socioeconomic rights which find prominent place in the Constitution of South Africa is articulated in the Canadian context in the language of a right to 53

54 55

J. M. Finnis ‘A Bill of Rights for Britain? The Moral of Contemporary Jurisprudence’ (1985) 71 Proceedings of the British Academy 303, 326 (footnote omitted, emphasis added). See also Habermas ‘Constitutional Democracy’ 778. See Finnis ‘A Bill of Rights for Britain?’ 331. See US Constitution Amendment IX; Canadian Charter s 26.

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‘equality’ (rather than a ‘right to health care’56) or in the language of a right to ‘liberty and security’ (rather than a ‘right to welfare’57). Beyond the potential to distort the rights-claims being made, this method of formulating the claims discloses a willingness to see all rights through the prism of the constitution and its privileged set of rights.58 An important caution follows. Despite the blindfolds and historical amnesia inflicting those who look to a constitution as a definitive statement of what is required to secure the political legitimacy of the State, one should not conclude that the existence of a constitution has exhausted the quest for constitutional arrangements that will succeed in securing political legitimacy. The historical contingencies of all moments of constitution-making should lead one to view the conclusions of constitutional negotiations as contingent. Political practice tends to confirm this, as talks of constitutional re-negotiations are rarely far off the political agenda. The circumstances surrounding most constitutional negotiations suggest that any act of constitution-making will be the product of fallible reasoning by citizens undertaken at a given historical period with the assumptions that accompany each epoch of history. This encourages one to interrogate the calls for constitutional re-negotiating – that is, the reasons beyond historical contingency for seeking to challenge and, in turn, to re-evaluate a constitution’s purported reconciliation of the principles of political legitimacy.

2

Calls for constitutional re-negotiating

The preceding discussion of historical contingencies outlines the idea that a constitution should not be an end-state, even from the perspective of law-making. The ensuing discussion will continue to flesh out the claim that the constitution ought to remain open, on an ongoing basis, to democratic re-negotiating. The first four calls for re-negotiating identified below speak to the challenge of approximating a reconciliation of the two principles of political legitimacy: they highlight the attitude of humility that should accompany any conclusion to constitutional negotiations. They speak to the need to remain aware that any conclusion to a 56

57 58

Auton (Guardian ad litem of) v. British Columbia [2004] 3 SCR 657 (Supreme Court of Canada). Gosselin v. Quebec [2002] 4 SCR 429 (Supreme Court of Canada). See H. Arthurs ‘Constitutional Courage’ (2003) 49 McGill Law Journal 1. A similar point is often made in the American context: Glendon Rights Talk xi; Waldron ‘The Core of the Case Against Judicial Review’ 1381.

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constitutional negotiation should be tentative, which is not to say that it is not deserving of respect for the sort of achievement it is. Indeed, we will see that the various calls for constitutional re-negotiating also identify the ‘respect’ with which any given reconciliation should be viewed: for ‘the time being, [it] is what the community has come up with’ and ‘it should not be ignored or disparaged simply because some of us propose, when we can, to repeal it’.59 The fifth call for re-negotiating suggests that even if a constitution perfectly reconciles the principles of political legitimacy at a given time, the circumstances of the State are forever changing such that at any later time, a constitution may lose its ideal status. The sixth call for re-negotiating explores the importance of the principle of democracy as an unshakable source for leaving a constitution open for re-negotiating even if an ideal constitution has been achieved and continues to be ideal over time.

(a) Equiprimordial principles of political legitimacy The principle of democracy and the principle of human rights are each equally basic;60 neither principle is derived from the other. The political legitimacy of the State is dependent on actualizing both, and no one principle should gain unqualified priority over the other or be sacrificed in the name of the other. Otherwise, securing one principle in a constitution comes at the expense of the other principle and, thereby, at the expense of the political legitimacy of the State. If it is true, as I believe, that there is no perfect reconciliation of the two principles of political legitimacy, then any purported ‘reconciliation’ will necessarily be unstable. Given that such a ‘reconciliation’ will not be discovered, but rather established and postulated, a different approximated reconciliation is imaginable and will be liable to challenge existing constitutional arrangements. (b) The indeterminacy of actualizing the principles Actualizing the principle of democracy and the principle of human rights is not an exercise in logical deduction. The principle of democracy may be actualized by way of a parliamentary or presidential or mixed system 59 60

Waldron Law and Disagreement 100. See Tully ‘The Unfreedom of the Moderns’ 207 (but note that Tully refers to the principles of democracy and constitutionalism as equally basic). Habermas, for his part, refers to human rights and democracy as ‘co-original’: Between Facts and Norms 84–104.

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of government. A democratic legislature may be bicameral or unicameral. Representatives may be elected on a first-past-the-post or proportional representation or mixed electoral system. No one system of government consistent with the principle of democracy is commanded by reason, even if many are excluded by it. Questions surrounding ‘the televising of parliament, public funding for parties, term limits and proportional representation have always been controversial’ and, as importantly, ‘the balance of opinion about them has often shifted over time’.61 In addition to the grand structural issues, questions surrounding the drawing of electoral boundaries and the determination of the voting franchise all engage the actualization of the principle of democracy. There are often good but inconclusive reasons favouring one option over another, and what alternative is preferred, all things considered, may shift with the passage of time and with a State’s experience with a previously chosen option. The principle of human rights also involves complex ideas that belie obvious answers. For example, what should be the proper legal relationship between the right to life and abortion, euthanasia, assisted suicide, and capital punishment? This question is informed, but not answered by the principle that the State should actualize human rights. The principles of political legitimacy guide one to ask certain questions and to take certain matters into account, but they do not conclude the process of reasoning. Political judgment is called for. The indeterminacy of the process of actualizing the principles of political legitimacy does not deny that the principles ‘orient participants in their critical discussion and contestation of the legitimacy or illegitimacy of a practice of governance’.62 Indeed, it is important to emphasize that despite the fact that they do not determine the outcome of a constitutional negotiation, the principles of political legitimacy serve as a ‘mode of problematisation’63 for such negotiating. They state the relevant questions, even if they cannot identify the only answers.

(c) The absence of a criterion of correctness The extent to which the constitution secures the political legitimacy of the State is a matter of judgment and decision. There is no discernible criterion of correctness for measuring the extent to which a constitution 61 62 63

Bellamy Political Constitutionalism 134. Tully ‘The Unfreedom of the Moderns’ 206 (emphasis added). Tully ‘The Unfreedom of the Moderns’ 207.

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secures the political legitimacy of the State, once extreme examples are excluded (such as a constitution that sanctions slavery or that prohibits elections). This is not to say that in no case other than extreme examples can it be concluded that a constitution fails to secure political legitimacy. Rather, it is to say that a political authority is required to make that political judgment. And this judgment can be made at different levels of subtlety, including ‘politically illegitimate’, ‘lacking political legitimacy’ and ‘suffering from a loss of political legitimacy’. Now, the absence of an accessible criterion of correctness does not deny moral objectivity; if it did, moral disagreement would become almost unintelligible as would the idea of political legitimacy. Indeed, one can ‘recognize the existence of disagreement on matters of rights and justice – one can even acknowledge that such disagreements are, for practical political purposes, irresolvable – without staking the metaethical claim that there is no fact of the matter about the issue that the participants are disputing’.64 The need for political judgment and choice – that is, the need for political authority – is not premised on the rejection of moral objectivity. Indeed, ‘it is perfectly compatible with there being a truth of the matter about rights’ so long as one accepts that, because this truth will not disclose itself ‘in ways that are not reasonably deniable’, the persistence of disagreement about rights and about other political matters is inevitable.65 According to the principle of democracy, the political authority charged with the responsibility for judging whether the constitution secures the political legitimacy of the State should be citizens (and their representatives) collectively. That responsibility cannot, consistent with the principle of democracy, be delegated to theorists or high priests. It must be a judgment exercised democratically. Now, although citizens should strive to avoid epistemic faults such as bias and superstition, their reason remains nonetheless fallible. By highlighting the fallibility of citizens (and their representatives), I aim to highlight ‘an awareness of the conditions of knowledge’, such that the recognition of fallibility should be accompanied by a ‘readiness’ on the part of citizens (and their representatives) to re-examine their beliefs from time to time.66 This, together with what Rawls termed the burdens of judgment – ‘the 64 65

66

Waldron Law and Disagreement 244 (footnote omitted). Waldron ‘The Core of the Case Against Judicial Review’ 1368; Waldron Law and Disagreement 244. Raz ‘Liberalism, Skepticism, and Democracy’ 85, 86.

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many hazards involved in the correct (and conscientious) exercise of our powers of reason and judgment in the ordinary course of political life’67 – anchor this call for constitutional re-negotiating.

(d) The persistence of reasonable disagreement Citizens (and their representatives) will disagree on whether it is possible to reconcile the principles of political legitimacy and whether the current constitution is the best approximation of such a reconciliation. Because reason does not determine what constitution is best and because there is no accessible criterion of correctness for evaluating whether the political judgment and choices involved result in a constitution that secures the political legitimacy of the State, not all disagreement between citizens will be unreasonable. Rather, one should expect of citizens that the disagreement that animates constitutional negotiations and that calls for a new round of negotiations will be reasonable disagreement. But because a decision is required in the face of (reasonable) disagreement about what that decision should be, constitutional negotiations (as with all law-making) operate in what Waldron has termed the circumstances of politics.68 One should expect of citizens that constitutional negotiations and calls for re-negotiating are fuelled by a concern that there exist constitutional arrangements better suited to securing the political legitimacy of the State. And this holds both for the non-ideal circumstances in which citizens actually deliberate and for the ideal circumstances they aspire to deliberate in. The reasonable disagreement that surrounds many questions of rights can be understood, in part, as speaking to the importance citizens attribute to rights in their negotiations. One could refer to this call for re-negotiating as the ‘agonistic’ dimension of constitutional negotiating ‘because it entails that no rule of law, procedure or agreement is permanently insulated from disputation in practice in an open society’.69 As a result, citizens’ primary orientation should not be for a definitive and final reconciliation. If it is no longer assumed that there is some ‘definitive ordering of legitimate political associations’ towards which constitution-making and re-negotiating are tending,70 then citizens should accept that reasonable disagreement will result in a permanent contest over which constitutional arrangement is best.

67 69 70

Rawls Political Liberalism 56. 68 Waldron Law and Disagreement 101–03. Tully ‘The Unfreedom of the Moderns’ 207. Tully ‘The Unfreedom of the Moderns’ 208.

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(e) The changing circumstances of the state The previously reviewed calls for re-negotiating question the possibility that citizens will achieve and know that they have achieved a constitution that reconciles the principles of political legitimacy. This fifth call for re-negotiating suggests that quite irrespective of the possibility that a constitution succeeds in achieving its aim, a constitution will not remain ideal perpetually. The circumstances of the State are forever changing and some changes in circumstances will require the constitution to be re-negotiated in order to continue to secure political legitimacy. After all, many issues understood to be pressing today, ‘even some that seem obvious and unavoidable to us, were not foreseen, naturally enough, and were not faced’ in the last round of constitutional negotiations.71 In the American context, one may question whether the right to bear arms under the Second Amendment should continue today to be a constitutionally guaranteed right. In the Canadian context, one may question whether the ‘land claims recognized in various treaties may be too much, or too little, given changes in the size and lifestyle of indigenous communities’ and whether the legislative powers given to Quebec at confederation in 1867 are still appropriate at a time when provincial and State borders are porous.72 To this, one could add the effects of immigration, assimilation, cultural and industrial revolutions, globalization and any other host of changing circumstances that escape the scope of accurate foresight when the last round of constitutional negotiations was undertaken. Because the reconciliation of the principles of political legitimacy is not the theorist’s task, indeed because it is the citizen’s task, it is never divorced from real-world circumstances of the here and now. And because those circumstances are never forever stable, neither is the constitution negotiated in their shadow. (f) The principle of democracy This sixth call for re-negotiating goes to the heart of the claim that the limitation of constitutional rights ought to remain open, on an ongoing basis, for democratic re-negotiating. It maintains, in its strongest formulation, that even if citizens (and their representatives) have negotiated a constitution that is known (by them) to reconcile the principle of human rights and the principle of democracy and that maintains that 71 72

Bickel The Least Dangerous Branch 104. See also Rubenfeld Freedom and Time 125. W. Kymlicka Multicultural Citizenship: A Liberal Theory of Minority Rights (New York: Oxford University Press, 1995) 120.

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status through changing circumstances, it should nevertheless not be closed for re-negotiating. In other words, even a perfect constitution should remain open for re-negotiating. Why, one might ask, should a perfect constitution be re-negotiated? This manner of formulating the question misstates the claim being defended. A perfect constitution should not be re-negotiated, but it should nonetheless remain open for re-negotiating. The principle of democracy requires that citizens (and their representatives) collectively decide by what rules, procedures, and institutions they are governed. The full actualization of the principle of democracy cannot be achieved by a perfect constitution alone. It requires, in addition, that citizens participate collectively according to these rules, procedures, and institutions. But the principle of democracy includes another critical aspect. Citizens must be free to re-negotiate those very rules, procedures and institutions that they collectively have decided upon. The principle of democracy is disrespected, and political legitimacy is challenged, as soon as something is taken outside the scope of democratic testing. That rule, procedure or institution then becomes somewhat alien, somewhat imposed, even if at one time citizens understood themselves as having decided collectively to adopt it. Now, it does not follow from the refusal to exclude something from re-negotiating that it should properly be re-negotiated. As Raz explains, ‘[s]ome of our beliefs should be re-examined periodically, whereas others, while open to revision if contrary evidence is forthcoming, need not be subject to routine re-evaluation’.73 For example, the right to be free from slavery is not something that should be re-negotiated. Any decision to come to a different conclusion on that core question would do violence to the principle of human rights. But if the re-negotiating of this right is available, the unwillingness to re-negotiate is not in contravention of the principle of democracy. Rather, this unwillingness allows one to understand the right to be free from slavery as a standing decision, virtually but not actually re-made everyday. Citizens (and their representatives) can be understood as continuing to affirm the actualization of the principle of human rights as regards freedom from slavery. Dworkin, speaking to the continuing existence of a statute, captures well the idea of maintaining a decision, despite the availability of an opportunity to change it:

73

Raz ‘Liberalism, Skepticism, and Democracy’ 86.

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A statute owes its existence not only to the decision people made to enact it but also to the decision of other people later not to amend or repeal it. Of course ‘decision’ may be too strong to describe the negative attitudes that allow most statutes to survive, sometimes long after they serve much use. They survive by inattention and default rather than by any conscious and collective decision. But even inattention may reflect some common understanding about the point and detail consequences of a statute that is different from the understanding held by the legislators who enacted it in the first place; in the more dramatic cases, when people have campaigned for amendment or repeal, the decision to let it stand may be more active and explicit.74

If a constitution may be re-negotiated as a statute may be changed, then it too owes its continuing existence to the virtual, even if not actual (but not merely hypothetical) ‘decision’ of citizens not to amend or to repeal it. In Chapter 5, we will see the central relationship between re-negotiation, the limitation of rights and legislation. Rejecting the view of the constitution as end-state may lead one down different paths. I will defend the view that it should lead one to the argument that the limitation of constitutional rights ought to remain open, on an ongoing basis, for democratic re-negotiating. All constitutional re-negotiations should be democratic – a point explored further in the next section – lest they run counter to the principle of democracy. And constitutional re-negotiations should be available on an ongoing basis in the sense that at no stage should they be unavailable. Now, as mentioned, it does not follow that citizens are constantly re-negotiating their constitutional rights. Nor does it deny that they may choose never to re-negotiate their rights. However, they should (more or less constantly) be asking themselves whether the constitution continues to secure political legitimacy since the last re-negotiating came to a tentative close. One should thus appeal to the idea of ongoing in the sense of constantly open for re-negotiating. The suggestion is not that the activity of re-negotiating is ongoing in the sense that a conclusion, however tentative, is never brought about. This appeal to the idea of ongoing opposes itself to ‘never’, ‘by special process’ and ‘at fixed intervals’. The idea of ‘never’ is captured by the view of the constitution as end-state. Consider Rawls’s view that ‘by a democratically ratified constitution with a bill of rights, the citizen body fixes once and for all certain constitutional essentials, for example, the equal 74

R. Dworkin Law’s Empire (Cambridge, Mass: Belknap Press, 1986) 318–19 (emphasis added).

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basic political rights and liberties, and freedom of speech and association’.75 In a debate with Rawls, Habermas aptly noted that it is not possible for citizens in Rawls’s model to experience this process of realizing the system of basic rights ‘as open and incomplete, as the shifting historical circumstances nonetheless demand’.76 These ‘constitutional essentials’ have been fixed ‘once and for all’. They were determined by the theorist even before the citizens entered the stage. Under Rawls’s model, citizens cannot ‘reignite the radical democratic embers of the original position in the civic life of their society, for from their perspective all of the essential discourses of legitimation have already taken place’.77 The constitution is beyond re-negotiation. It is never to be reopened. The calls for re-negotiating reviewed above seek to reject this view. The idea of ‘by special process’ appeals to the idea that citizens (and their representatives) should proceed to re-negotiating by appealing to rules and procedures different from the rules and procedures available for the regular democratic process. A core purpose of the special processes for constitutional amendments is to prevent constitutional change by removing debates from political debate and ‘ordinary politics’ and positioning them in some special order of ‘constitutional politics’.78 Should change be sought, it should rise to a certain level of importance before warranting a place on the constitutional stage. But, as will be seen below, this cannot be. The idea of ‘at fixed intervals’ is captured by Jefferson’s famous suggestion that citizens should re-engage in the act of constitutionmaking every nineteen years.79 Yet, between year nought and year nineteen, if Jefferson’s citizens are not invited democratically to test their constitutional arrangements, they become democratically unfree with respect to their constitution. They become the subjects of their constitution, unable to continue to see themselves collectively as its author. Citizens are somewhat unfree as pertains to the constitution if it is more difficult, as a legal matter, to re-negotiate the constitution than it is to adopt or amend a statute. For as soon as that is the case, they can no longer see themselves as continuing to sustain their constitution virtually 75 76 77

78 79

Rawls Political Liberalism 232 (emphasis added). Habermas ‘Reconciliation through the Public Use of Reason’ 69. Habermas ‘Reconciliation through the Public Use of Reason’ 69–70 (emphasis in original). See Ackerman We the People: Foundations. A helpful summary is provided in Rubenfeld Freedom and Time 18–22.

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by their decision not to re-negotiate it. Because that is not available, the constitution is no longer theirs and within their grasp, with the result that violence is done to the principle of democracy.

3

Constituent and constituted authority

The calls for constitutional re-negotiating, and especially the call grounded in the principle of democracy, leads to the conclusion that a constitutional order should ‘be a “negotiated” constitutional order or a continuously “conciliated” order’.80 The constitution and its rules, procedures and institutions governing democratic deliberations and legislation cannot legitimately be withdrawn from the legislature. The constitution ought to be legitimated by remaining open, on an ongoing basis, to the possibility of re-negotiating. This framework challenges any strict divide between constituent and constituted authority. Constitutional scholarship draws a distinction between constituent authority (the authority that constitutes the constitution) and constituted authority (the authorities constituted by the constitution).81 The legislature is an authority constituted by the constitution. The governing view of constitutional scholarship is that the ‘constituent power of the people … sets up a framework to regulate ordinary power’ and then retreats, only to come into play again ‘when the existing regime has been dissolved’.82 The people speak at the moment of the founding only to retreat from the stage. They exercise their power to create the constitution only once, and thereafter resign themselves to their constitutional form: the legislature, the executive, the administration, the court, the citizen. It is only through these constitutional forms that the people now speak. Yet, the authority of the founders of the first constitution cannot be constituted by the very constitution they establish. By definition, the first constituent authority proceeds in a manner that is not sanctioned by the constitution. Prior to the historically first constitution, there are no legal rules, procedures or institutions to give voice to citizens; there is no legally normative account of who is a citizen.83 The very act of constitution-making, when evaluated from the perspective of the 80 81

82 83

Tully ‘The Unfreedom of the Moderns’ 208. See M. Loughlin and N. Walker (eds) The Paradox of Constitutionalism: Constituent Power and Constitutional Form (Oxford: Oxford University Press, 2007). Rawls Political Liberalism 231 (emphasis added). There may, however, be non-legal rules, conventions and community norms that inform the first set of rules, procedures and institutions.

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constitution once established, poses a challenge to the political legitimacy of the State for it did not proceed according to the actualization of political legitimacy provided for in the constitution. As a matter of political legitimacy, no strict division should obtain between constituent and constituted authority. Given that citizens are already situated and that their authority is already constituted, it would pose a challenge to the political legitimacy of the State to suggest that the moment of assuming the identity of a constituent authority is behind them. It would be to suggest that the rules, procedures and institutions outlined in the constitution are out of the citizens’ reach, that they should forever resign themselves to their constitutional forms. Rather, political legitimacy demands that citizens (and their representatives) must continue to assume the status of both constituted and constituent authorities. This awkward yet empowering tension cannot be answered at a given historical moment. Citizens cannot be both a constituted and a constituent authority at the same time. They cannot start wholly anew the process of constitution-making without losing the status of constituted authority, and they cannot fail (to be able) to question the existing constitution without abandoning the status of constituent authority. Rather, citizens must be both a constituted and a constituent authority over time. A constituted authority – such as the legislature – can be empowered to question and to change the constitution, as provisions for constitutional amendment make obvious. In this respect, a legislature’s relationship with the constitution is a subtle one of interaction and not only one of submission. As a constituted authority, it should act in accordance with the constitution. However, to accede to the status of a constituent authority, the legislature should also be empowered to question and, in appropriate circumstances, to re-negotiate the constitution. But because the entire process is channelled through the constitutional forms established by the constitution, any amendment may only change, not found a constitution, quite irrespective of the degree of change that is being pursued. There is no new beginning; rather, there is a new chapter in the story of the constitution. As mentioned, no part of being enabled to re-negotiate the constitution suggests that the legislature ought to re-negotiate any part of the constitution. There are many reasons that may cause a legislature to refrain from engaging in re-negotiation. Among them is the following commanding reason: ‘[i]f we can take for granted certain procedures and institutions fixed in the past, we can achieve our present goals more

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45

effectively than we could if we were constantly being sidetracked by the recurrent need to establish a basic framework for political life’.84 But, when the legislature does engage in constitutional re-negotiating, it does so en passant; that is, it relies on some parts of the constitution as it re-negotiates others, perhaps even in order to re-negotiate others.85 The legislature appeals to rules, procedures and institutional structures in order to re-negotiate some of those rules, procedures and institutional structures. In part because of this, no constitutional re-negotiation will be definitive: it will have proceeded ‘in accord with some principles, rules and procedures which [were] not questioned in the course of the negotiations, on pain of infinite regress, to be constitutionally legitimate, but which must be open to democratic review in the future, to be democratically legitimate’.86 In this sense, while democratic practices should themselves be governed by the constitution in order to be politically legitimate, the constitution should also be open to change by those same democratic practices in order to be politically legitimate. The principles of political legitimacy thus call both for a constitution and for its submission to the possibility of re-negotiating. In this way, the constitution should be conceived of as an activity.

C The constitution as activity If not an end-state, how should a constitution be understood? What understanding better conforms to the requirements of political legitimacy? Guided by an understanding of the constitution that rejects the view that there is a definitive ordering of political legitimacy for the democratic constitutional State, I explore the phenomenon of the constitution as activity. Today, ‘as the result of two hundred years of constitution making and remaking and of discussions of rival and changing theories of democratic-constitutional justice’, one comes to an understanding according to which the principles of political legitimacy ‘work together in [an] open-ended and non-definitive manner’.87 By understanding a constitution as an activity, one may conceptualize a 84

85

86 87

Holmes Passions and Constraint 153. See also the discussion on ‘constitutional gag rules’ in Holmes Passions and Constraint ch 7. This expression is Tully’s: ‘The Unfreedom of the Moderns’ 217; Tully ‘The agonic freedom of citizens’ 175. Tully ‘The Unfreedom of the Moderns’ 208. Tully ‘The Unfreedom of the Moderns’ 208.

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constitution as remaining open, on an ongoing basis, to democratic re-negotiating.

1

The constitution as activity explored

If the possibility of constitutional re-negotiating is available, every action performed according to a constitution can be understood as legitimizing the constitution. Every legislative act undertaken in accordance with the constitution can be understood, in part and indirectly, as a legislative decision not to re-negotiate that part of the constitution to which the legislation speaks and conforms to. So long as the rules, procedures and institutional structures outlined in the constitution remain open for re-negotiating, all legislative activity that is undertaken in accordance with them can be understood as conferring legitimacy on those very rules, procedures and institutional structures. Viewing a constitution in this way frames its relationship with the legislature as one of subtle interaction rather than the end-state constraint-based understanding. One may begin to see how legislative activity can be conceived of as constitutional activity. The legislature, by choosing not to re-negotiate the constitution, sustains the constitution. Its legislative activity continuously affirms, albeit indirectly, the constitutional arrangements aimed at securing political legitimacy. But this holds only on the condition that the constitution remains open, on an ongoing basis, to democratic re-negotiating. If any part of the constitution is not open for re-negotiating, then legislative action in accordance with (and the absence of legislative action seeking to change) that part of the constitution cannot be understood, even indirectly, as a continuing affirmation of that part of the constitution. Without the legal88 possibility for citizens (and their representatives) to re-negotiate the constitution, the absence of attempts to engage with re-negotiations cannot be understood as anything other than a resolve – a ‘resigned acquiescence’89 – that the rules, procedures and institutional structures are beyond the reach of regular democratic channels, yet necessary for the enactment of law. In such a case, the constitution cannot be conceived of as activity. When understood as a contingent, dynamic activity, the constitution ‘must be left open so we may rebuild the ship at sea – employing, as we

88 89

As opposed to practical difficulties, such as marshalling support among citizens. Holmes Passions and Constraint 157.

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47

must, the prevailing procedures to renew and reform those self-same procedures’.90 This ship is rebuilt according to the legislative process constituted by the constitution that is already at sea; the ship of State, being already underway, already constitutes both the constitution and the legislative process such that citizens are not in an ‘original position’ tasked with designing a first or original constitution and legislative process. They are not in search of convening special conferences or requiring super-majorities. They are, so to speak, already at sea and the process of rebuilding is, quite simply, ‘continual’.91 There is no single, identifiable moment of constitution-making. Rather, because disagreement will never cease, because changing circumstances affects people’s reasoned opinions, ‘constitution-making needs to be seen as an ongoing political process’.92 The constitution is created, sustained, and amended through legislative action. It resists change and succumbs to change through the law-making process. The re-negotiable character of a constitution is not ‘a flaw to be overcome’.93 It is required by the calls for re-negotiating identified above. Moreover, beyond legitimating the State, leaving the constitution open for re-negotiating may provide it with stability. The possibility of re-negotiating constitutional arrangements can provide a sense of belonging to citizens who failed to prevail in putting forward their understanding in the latest round of constitutional re-negotiations. That sense of belonging does not result because ‘a consensus is reached, or is on the horizon’, but rather, and precisely because, citizens ‘become aware that, despite its current imperfections and injustices’, the constitution is not closed to re-negotiating.94

2

Constitutional re-negotiations

What are the candidates for attempting constitutional re-negotiating? Although one may immediately think of a constitutional amendment as a mode of constitutional re-negotiating, might one consider, in the extreme, a revolution in such a way? Or the use of a notwithstanding

90 92 93 94

Bellamy Political Constitutionalism 174. 91 Bellamy Political Constitutionalism 175. Bellamy Political Constitutionalism 106. Tully ‘The Unfreedom of the Moderns’ 218. Tully ‘The Unfreedom of the Moderns’ 211. See also Michelman ‘Human Rights and the Limits of Constitutional Theory’ 75.

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clause as found in the Canadian Charter? And what of living tree constitutional interpretation?95 Revolutions. It is fitting to begin with the most extreme example of constitutional change: that of rejecting the existing constitution in favour of another. I am here appealing to the idea of revolution, but not in the legal–technical sense.96 I have in mind the rejection of the constitutional rules, procedures and institutional structures altogether, the rejection of constituted authority, and the direct appeal to raw constituent authority. Described in this way, a revolution cannot be a constitutional re-negotiation. A revolution does not appeal to some parts of the constitution in order to re-negotiate others. It does not seek to combine constituent and constituted authority in an effort to re-negotiate the constitution. It does not engage with constitutional change en passant. Rather, it seeks to engage again in the first act of constitution-making without reference to the existing constitution. It is a direct appeal to the principles of political legitimacy and not one that is mediated through the existing constitution and the constitutional forms and constituted authorities it establishes.97 This mode of constitutional change thus fails to qualify as constitutional re-negotiating. But one point should here be emphasized: a revolution may be necessary where the constitution does not remain open for re-negotiating. If the constitution does not provide the channels according to which the constitution may be re-negotiated, if a constituted authority cannot appeal to the status of constituent authority – in other words, if the constitution is an end-state – then rejecting the constitution may be an acceptable course. And if this is one of the motivations for a revolution, then one should expect the newly established constitution to be constituted in such a manner as to remain open for re-negotiating.

95

96

97

Other candidates not here explored include Ackerman’s theory of ‘constitutional moments’ (introduced in Ackerman ‘Discovering the Constitution’ and Amar’s ‘majoritarian and populist mechanism’ for ‘the People’ to amend the US Constitution (AR Amar ‘The Consent of the Governed: Constitutional Amendment Outside Article V’ (1994) 94 Columbia Law Review 457). For a critical review of legal–technical accounts of revolutions, see J. M. Finnis ‘Revolutions and Continuity of Law’ in A. W. B. Simpson (ed) Oxford Essays in Jurisprudence (Second Series) (Oxford: Clarendon Press, 1973). Of course, revolutions may be undertaken for less noble reasons as well, such as the imposition of a dictatorship.

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Constitutional amendments. Amendment formulas are, by definition, means according to which a constituted authority may assume the status of constituent authority and re-negotiate some part of the constitution. Depending on the confidence (or hubris) with which the constitutionmakers concluded that they had succeeded in establishing an ideal constitution, amendment formulas may seek to make amendments difficult to achieve. Indeed, constitutional scholarship tends to the view that constitutional amendment formulas are designed to make amendments difficult to secure and thereby exceptional.98 The practice of constitutional amendments differs from one jurisdiction to another. The US Constitution has been amended only seventeen times since 1791.99 By contrast, the Constitution of South Africa has been amended thirteen times since its adoption in 1996. The frequency of constitutional amendments turns on at least two considerations. First, the specificity of the constitutional provisions; if a constitution ‘purports to settle, in detail and for all time, most of the issues that are likely to be the grist of the political mill, it invites either abandonment or frequent amendment’.100 Second, the amendment formula itself will influence the regularity of amendments. For example, the US Constitution requires that an amendment be ratified by ‘the legislatures of three-fourths of the several states’;101 similarly the ‘[g]eneral procedure for amending the Constitution of Canada’ requires ‘resolutions of the Senate and House of Commons’ and ‘resolutions of the legislative assemblies of at least twothirds of the provinces that have, in the aggregate … at least fifty per cent of the population of all the provinces’.102 These formulae give expression to the federal structure of both countries, but in political practice have rendered unlikely the prospect of constitutional amendment. While available to undertake constitutional re-negotiating, amendment formulae tend to be designed to obfuscate the ongoing availability of re-negotiating. Notwithstanding clauses. The Canadian Charter’s (in)famous notwithstanding clause allows the legislature to change its relationship to the constitution. It does not, as will be seen, engage the legislature in constitutional change, since it does not authorize changes to the 98

99

100 102

See Holmes Passions and Constraint 155; Raz ‘Authority and Interpretation of Constitutions’ 153. The first ten amendments (the Bill of Rights) were all proposed and quickly ratified between 1789 and 1791. Bickel The Least Dangerous Branch 105. 101 US Constitution, Article V. Constitution Act 1982 (Canada), s 38.

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constitution. For this reason, it cannot qualify as constitutional re-negotiating. However, it does allow the legislature to evaluate which Canadian Charter rights are necessary in order to secure the political legitimacy of the State. (I will not here consider another use to which the legislature could put the notwithstanding clause, namely: to respond to a judicial decision declaring legislation unconstitutional.103) Section 33 of the Canadian Charter provides, in relevant part, that ‘Parliament or the legislature of a province may expressly declare in an Act … that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter’.104 During the period of time that the notwithstanding declaration takes effect, the Act or provision in question ‘shall have such operation as it would have but for the provision of this Charter referred to in the declaration’.105 A declaration shall be valid for no more than five years, and may be re-enacted under the same conditions.106 An illustrative example of how this provision has been used to change the legislature’s relationship to the constitution occurred only months following the proclamation of the Constitution Act 1982. In June 1982, the Quebec National Assembly, in protest at constitutional reforms proclaimed despite its objections and despite Quebec’s refusal to consent to patriation, passed omnibus legislation inserting a notwithstanding declaration into every Quebec law in operation.107 The effect of the legislation was to suspend, in the province of Quebec, the operation of the Canadian Charter rights and freedoms listed in section 33. It is appropriate to conceive of a notwithstanding declaration as suspending that part of the constitution to which it applies. Legislation is enacted notwithstanding the rights and freedoms guaranteed by the charter of rights. For this very reason, the notwithstanding clause does not allow for the re-negotiating of the constitution; the constitution remains intact, even if the legislature’s relationship to the constitution is changed during the period of suspension. Now, although the legislative use of a notwithstanding clause fails to qualify as constitutional re-negotiating, it would otherwise satisfy the ‘ongoing’ and ‘democratic’ conditions for re-negotiating (with respect to those rights to which it 103

104 106 107

This is most likely its intended purpose, but the wording of the clause suggests quite another purpose. Canadian Charter, s 33(1). 105 Canadian Charter, s 33(2) (emphasis added). Canadian Charter, s 33(3)–(5). An Act respecting the Constitution Act, 1982 RSQ c L–4.2 (Quebec).

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applies). It is always available and thus satisfies the ‘ongoing’ condition, and it proceeds according to regular legislative channels and thus satisfies the ‘democratic’ condition. This points in the direction of what would be necessary for the limitation of constitutional rights to remain open, on an ongoing basis, for democratic re-negotiating. Living constitutionalism. Constitutional provisions rarely escape the need for interpretation and a question that faces an interpreter is whether the interpretation of the constitution may change over time. Yet, like the key word ‘political legitimacy’, ‘interpretation’ also acts as a ‘facilitative equivocation’.108 The idea of interpretation has become all too present in constitutional scholarship and practice. It now serves as a placeholder for discovering meaning, supplanting meaning and changing meaning and encompasses the entire activity from the first premise that is the constitutional text to the end of the reasoning process in all cases. On this view, everything is a matter of interpretation; interpretation never runs out; it occupies the whole field. In addition to occupying the entire field from first premise to conclusion irrespective of the indeterminacy of the constitution, interpretation has also become the vehicle for changing the constitution – the core promise of living constitutionalism. It is often maintained that interpretation involves ‘a combination of reasons for respecting the constitution as it exists and reasons for remaining open to the possibility that it is in need of reform, adjustment, or development’.109 In this way, living constitutionalism constitutes constitutional re-negotiating. It changes the rules or procedures of the constitution, as understood until that point. When there is ‘reason to resort to [living tree] interpretation’ it is because there are calls for re-negotiating. Because it ‘lives in spaces where fidelity to an original and openness to novelty mix’,110 one should recognize that to speak of interpretation is somewhat of a misnomer. Given that a change in ‘interpretation’ can effect a constitutional re-negotiation, one should rather speak of living tree constitutional change or other such similar term that makes clear that the constitution is being modified.111

108 109

110 111

See Smith ‘What Does Constitutional Interpretation Interpret?’. Raz ‘Authority and Interpretation of Constitutions’ 177. See also Dworkin Freedom’s Law. Raz ‘Authority and Interpretation of Constitutions’ 180. This point is also made by L. Alexander ‘Introduction’ in L. Alexander (ed) Constitutionalism: Philosophical Foundations (New York: Cambridge University Press, 1998) 8.

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Because the availability of a different interpretation is always present and never surrendered, the constitution remains open, on an ongoing basis, for re-negotiating. But when living tree constitutional ‘change’ is performed by the judiciary, the re-negotiating is not democratic.112 The principle of democracy has been disrespected because citizens have not participated in the constitutional change and are subject to rules, procedures, and institutions that are not of their choosing. As between revolutions, constitutional amendments, notwithstanding clauses and living tree constitutional change, only two leave a constitution open for constitutional re-negotiating. And as between constitutional amendments and living constitutionalism, only some aspects of each have the potential to leave a constitution open, on an ongoing basis, for democratic re-negotiating. The present search, let it be remembered, is not for a single, perfect model of constitutional re-negotiating. The call for constitutional re-negotiating can be answered by a combination of different modes of constitutional re-negotiating, another one of which is introduced next. Working in concert, the different modes of constitutional re-negotiating should answer the call for re-negotiating. The onus is not on any one mode. But the search for modes of constitutional re-negotiating has not been exhausted. There is another mode of constitutional change – one that appeals directly to constitutional re-negotiating and that satisfies the ongoing and democratic requirements of political legitimacy. And it is one that is particularly relevant for constitutional rights.

3

The limitation of underdeterminate constitutional rights

My references to ‘the constitution’ have avoided, for the most part, referring to specific constitutional provisions. Yet, it should be obvious that calls for constitutional re-negotiating will depend, in part, on the wording and ambition of constitutional provisions. As mentioned at the 112

Although examples of living tree constitutional interpretation are usually taken from the judiciary (eg A. Kavanagh ‘The Idea of a Living Constitution’ (2003) 16 Canadian Journal of Law and Jurisprudence 55), this should not be taken to deny that the legislature and the executive can also ‘interpret’ the constitution in a manner that evolves with time (see B. Ackerman ‘The Living Constitution’ (2007) 120 Harvard Law Review 1737). However, according to the end-state view of a constitution, ‘novel interpretations’ are, when undertaken by the legislature, constitutionally subversive; only the courts may ‘update’ meaning through ‘interpretation’.

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beginning of this chapter, the argument developed here makes special reference to constitutional rights and this focus is fitting. For constitutional charters of rights, in unison with international conventions and legislative bills of rights, tend to guarantee rights and freedoms at the highest level of abstraction. Bills of rights are often paradigm cases of underdeterminacy in law; they are formulated in a way that finesses reasonable disagreement about what should be within the scope and content of the right. They avoid venturing too far into the reconciliation of the principles of political legitimacy, going some way and no further. In this way, constitutional rights can be taken to disclose a society’s commitment to rights – a manifestation that a ‘society cherishes rights to an extent that has led to the adoption of an official written bill or declaration of rights of the familiar kind’.113 But at the same time, these same rights disclose, albeit obliquely, the pervasiveness and importance of reasonable disagreement about what these rights require. For the most part, constitutional rights are proposed and adopted without resolving the great moral–political debates alive in the community – the relationship between the right to life and euthanasia, abortion and assisted suicide; between freedom of expression and pornography, libel, and hate propaganda; between the right to equality and affirmative action and the bases for evaluating unjustified discrimination. But because constitutional rights bear on these debates – because the debates will often be resolved if it could be agreed whether the right encompasses the activity in question – the constitution is incomplete and left open with regards to these underdeterminate rights. What, one might ask, are the consequences for constitutional re-negotiating? How should one understand the open-ended guarantees of constitutional rights in relation to the role of the constitution as promoting the political legitimacy of the State? There is here a subtle interaction. The underdeterminacy of constitutional rights’ guarantees signals that the last constitutional negotiation is unfinished despite its formal conclusion. For what remains underdetermined was quite simply not determined. The full reconciliation of the principles of political legitimacy was left open by the underdeterminacy of constitutional rights. In turn, this calls for the specification of the underspecified rights so as to complete the constitutional negotiation and come to a tentative, posited reconciliation of the principles of political legitimacy. Without completing the constitutional negotiation, the constitution cannot stand 113

Waldron ‘The Core of the Case Against Judicial Review’ 1346, 1365.

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as a judgment by citizens (and their representatives) about what is required to secure the two principles of political legitimacy. Yet, because the limitation of underdetermined constitutional rights is not undertaken by way of constitutional amendment, that aspect of the constitutional negotiation remains within ready grasp of reconsideration. In the chapters that follow, we will see how a limitation clause both confirms the underdeterminacy of rights’ guarantees and positions the re-negotiation of the limitation of constitutional rights within the legislature’s grasp. This in turn allows (this aspect of) a constitution to remain open, on an ongoing basis, to constitutional re-negotiating. In this way, we will explore how constitutional rights are perhaps a paradigmatic case of the recognition and acknowledgement of the circumstances of politics in constitutional negotiations. Constitutional rights are left open to being completed and, in this crucial way, invite the authorities constituted by the constitution to engage in the task of completing the constitutional edifice. This allows a constitution to be understood to be both architecture and activity; that is, both the constituting, distributing and constraining of governmental power while that self-same power re-constitutes, re-distributes and re-constrains itself. By virtue of the underdeterminate constitutional rights it guarantees, a constitution both frames, and is forever framed by, political activity.

Conclusion This chapter has sought to provide a theoretical framework for the argument that a constitution ought to remain open, on an ongoing basis, for democratic re-negotiating. In the chapters that follow, I will explore how the limitation of underdeterminate constitutional rights – and a limitation clause in particular – situates within the constitution itself a directive to re-negotiate as required by political legitimacy. My understanding of a limitation clause will aim to sustain the view that the process of framing a constitution ‘continues long after [the first] constituent assembly has been dissolved’.114 In so doing, I will defend the thesis of the negotiable constitution. 114

Holmes Passions and Constraint 161.

2 The received approach to the limitation of rights

Introduction What has been the approach to the limitation of constitutional rights? How have the grand formulations with which all are familiar been translated in concrete cases? How, for example, has the guarantee of the right to life been implemented with respect to questions of abortion, euthanasia, and assisted suicide? Freedom of expression and pornography, hate speech, and libel? The right to vote and minimum age, residency, and the relationship of prisoners to the franchise? And how does the resolution of these debates correspond to the idea that the underdeterminacy of constitutional rights leaves the constitution open to re-negotiation? In order to determine whether any given activity is within an open-ended right’s guarantee, the right must undergo a process of delimitation; its scope and content must be constructed. With the notable exception of the US Constitution, most domestic and international charters of rights make explicit the necessity for a process of limitation: they do so by way of a limitation clause that sets out the conditions according to which the limitation of a right will be assessed. These clauses are familiar to students of international instruments, such as the Universal Declaration of Human Rights,1 the European Convention on Human Rights,2 the International Covenant on Civil and Political Rights,3 and the International Covenant on Economic, Social and Cultural Rights;4 of domestic constitutions, such as the German Basic Law,5 the Canadian Charter of Rights and Freedoms,6 the 1 2

3 4 5 6

Universal Declaration of Human Rights, art. 29(2). Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human Rights, as amended), arts. 8(2), 9(2), 10(2), 11(2). International Covenant on Civil and Political Rights, arts. 12(3), 14(1), 19(3), 22(2). International Covenant on Economic, Social and Cultural Rights, arts. 4, 8(1). Basic Law for the Federal Republic of Germany, art. 2(1). Part I of the Constitution Act 1982 (Canada), s 1.

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South African Bill of Rights,7 and the Israeli Basic Law;8 and of statutory bills of rights, such as the British Human Rights Act,9 the New Zealand Bill of Rights,10 the Human Rights Act of the Australian Capital Territory,11 and the Charter of Human Rights and Responsibilities Act of the Australian state of Victoria.12 Despite different legal and political cultures and despite the many differences in the resolution of rights’ disputes, there is a discernable approach to the limitation of rights in the work of judges and scholars across these jurisdictions. Be it at the level of the European Court of Human Rights, the Federal Constitutional Court of Germany, the British House of Lords or Privy Council, the Supreme Court of Canada, the Israeli Supreme Court, or in any number of other jurisdictions, an approach to the limitation of constitutional rights seems to have achieved the status of a received idea. Almost without exception, academia and the courts have adhered faithfully to what may be called the received approach to the limitation of rights. Under the received approach, the analysis of a rights-claim proceeds in two stages, divorcing the question of the right from the question of its limitation. By reading the ‘limitation’ of a right as synonymous with the ‘infringement’ or ‘overriding’ of a right, the received approach characterizes a limitation clause as akin to a ‘savings clauses’ or a ‘defence’, whereby the infringement of a right may be saved or defended in the name of the public interest. On this view, the court is positioned as the arbiter of what infringements may be justified, and – again almost without exception – international and domestic courts have relied on the idea of proportionality and balance between the loss to the right and the gain to the public interest in order to assess the permissibility of the infringement of a right. The result is an expansive reading of all rights, the frequent infringement of rights by the State in pursuit of the public interest, and the appeal to the limitation clause (or not)13 to justify (or not) the infringement of constitutional rights. 7 8 9 10 11 12 13

Constitution of the Republic of South Africa (1996), s 36(1). Basic Law: Human Dignity and Liberty (1992) (Israel), s 8. Human Rights Act 1998 c 42 (United Kingdom) (incorporating the European Convention). New Zealand Bill of Rights Act 1990 no 109, s 5. Human Rights Act 2004 A2004–5 (Australian Capital Territory), s 28. Charter of Human Rights and Responsibilities Act 2006 no 43/2006 (Victoria), s 7. Many have noted that the absence of a limitation clause in the US Bill of Rights has not resulted in a different orientation for the resolution of rights-disputes by the US Supreme Court. See eg S. Gardbaum ‘Limiting Constitutional Rights’ (2007) 54 UCLA Law Review 789.

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The aim of this chapter is to explore some of the key assumptions underlying the received approach to the jurisprudence and scholarship of limitation clauses. My aim is to review this jurisprudence and scholarship, engaging at times in a re-construction so as to present a model of the received approach to the limitation of rights. Although the focus of the argument is on the limitation of constitutional rights, this chapter will not restrict itself to exploring constitutional bills of rights; the European Convention as well as domestic bills of rights will also be examined. While some (including the European Court of Human Rights itself) maintain that the European Convention has constitutional status14 and others (including the British House of Lords) maintain that legislative charters of rights have quasi-constitutional status,15 the relevance of these instruments is not contingent on their status. As this chapter aims to illustrate, an approach to the limitation of rights has been received within the judiciary and academia and is being appealed to without discrimination for resolving rights-disputes under legislative, constitutional, and international charters of rights. For this reason, I will appeal to a wide range of sources to illustrate the received approach. That said, my reliance on the jurisprudence of various courts is for illustrative purposes as our undertaking is neither an exercise in comparative methodology nor an exploration of some of the differences in detail or application of the received approach. Like the work of courts, the scholarship on the limitation of constitutional rights is by no means unanimous in all respects. Yet, there is a discernable general disposition that animates students of the limitation of rights and limitation clauses. Many look upon limitation clauses as causes for regret,16 suggesting that but for a limitation clause, a right’s infringement could not be justified – a view disclosed, perhaps, by 14

15

16

See Loizidou v. Turkey (Preliminary Objections) Series A no 310, (1995) 20 EHRR 99 [75]; S. Greer ‘Constitutionalizing Adjudication under the European Convention on Human Rights’ (2003) 23 Oxford Journal of Legal Studies 426; Letsas A Theory of Interpretation of the European Convention on Human Rights 35. See A. Kavanagh Constitutional Review under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009). Now, this ‘regret’ is evaluated from the perspective of rights. Some may discover benefits of a different order; for example, Gardbaum applauds the presence of a limitation clause for attenuating the countermajoritarian difficulty with judicial review insofar as the legislature may engage in a dialogue with the courts on the permissibility of limits (‘Limiting Constitutional Rights’ 821ff). But these benefits are of a different order than rights, which are generally understood to be somehow ‘less guaranteed’ because of a limitation clause.

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referring to limitation clauses interchangeably as ‘accommodation clauses’, ‘restriction clauses’17 or ‘exception clauses’.18 As a result, limitation clauses are sometimes looked to as ‘political compromises’.19 As a result, some read the combination of the right’s declaration and the limitation clause as suggesting that what the charter of rights ‘gives with one hand it takes away with the other’.20 Beyond these evaluations, when scholars examine the jurisprudence on limitation analysis, they tend to focus on synopsis and summary, not criticism or challenge.21 Yet, against this largely uncritical backdrop, two studies have undertaken a sustained and engaged defence of – but not a challenge to – the principle of proportionality which animates the received approach to the limitation of rights. German scholar Robert Alexy defends the role of proportionality-reasoning under the German Constitution22 and Canadian scholar David Beatty argues that the principle of proportionality inheres in all rights-reasoning and is an unavoidable part of all bills of rights.23 By no means exhaustive of the range of opinions held by academia, Alexy’s and Beatty’s support of proportionality reasoning with respect to rights is in many respects illustrative, even if not comprehensive, of the received approach in scholarship. 17

18

19

20 21

22 23

See Letsas A Theory of Interpretation of the European Convention on Human Rights. See also A. Sajó Limiting Government: An Introduction to Constitutionalism (Budapest: Central European University Press, 1999) 277–80. See Greer The Exceptions to Articles 8 to 11 of the European Convention on Human Rights. Dworkin Is Democracy Possible Here? Principles for a New Political Debate 49. John Griffith referred to limitation clauses as ‘the statement of a political conflict pretending to be a resolution of it’ (‘The Political Constitution’ (1979) 42 Modern Law Review 1, 14). See also S. Greer ‘“Balancing” and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate’ (2004) 63 Cambridge Law Journal 412, 425. Greer The Exceptions to Articles 8 to 11 42. See S. Greer The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge: Cambridge University Press, 2006); E. Ellis (ed) The Principle of Proportionality in the Laws of Europe (Oxford: Hart Publishing, 1999); J. Jowell and J. Cooper (eds) Understanding Human Rights Principles (Portland, Oregon: Hart Publishing, 2001). Cf Letsas A Theory of Interpretation of the European Convention on Human Rights; JL Hiebert Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen’s University Press, 1996); D. Meyerson Rights Limited: Freedom of Expression, Religion, and the South African Constitution (Kenwyn: Juta, 1997). Alexy A Theory of Constitutional Rights. Beatty The Ultimate Rule of Law. As for the empirical basis of Beatty’s claims, see R. A. Posner ‘Review Article: Constitutional Law From a Pragmatic Perspective’ (2005) 55 University of Toronto Law Journal 299, 301: ‘Beatty cites decisions from only 15 of [the world’s] 193 nations (plus decisions of one United Nations and two European tribunals), and 11 of the 15 are former British possessions.’

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This chapter begins with a brief overview of the limitation clauses included in various international, constitutional, and legislative charters of rights in order to illustrate that the specific wording of limitation clauses has not constrained the pull towards the received approach. In most cases, the resolution of rights-disputes begins with a generous reading of the interests protected by a right before evaluating the proportionality of any infringement of those interests. We will see how the received approach has not settled on the scope of inquiry for the resolution of rights’ disputes under proportionality and balancing analyses: at times, the enterprise seems focused exclusively on the particular and the factual, at other times on the general and the normative. Finally, a note on this chapter’s (and book’s) focus: legislative action, and not administrative or executive action, will be taken to be the source of the limitation of a right for the purposes of this study. No doubt, the received approach equally applies to executive and judicial action, even if the reference to ‘prescribed by law’ and ‘in accordance with law’ in most limitation clauses makes its application to administrative and executive decisions a question of some contention. Nevertheless, given my focus on the legislature as the principal democratic forum, the legislative limitation of rights shall be taken to be the central case for the received approach to the limitation of rights.

A Limitation clauses in comparative perspective The grand declarations of rights familiar to most charters of rights include the rights to life, liberty, security and equality and the fundamental freedoms of religion, expression and association. As a matter of architecture, charters of rights disclose three approaches to the limitation of rights.24 First, a charter of rights can be silent on the question of the limitation of rights, as is the US Constitution. As a result, some understand the First Amendment’s prescription that ‘Congress shall make no law … abridging the freedom of speech’ as meaning, simply, ‘Congress shall make no law’.25 24

25

See F. Schauer, ‘Freedom of Expression Adjudication in Europe and the United States: A Case Study in Comparative Constitutional Architecture’ in G. Nolte (ed) European and US Constitutionalism (Cambridge: Cambridge University Press, 2005); M. Kumm ‘Political Liberalism and the Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in G. Pavlakos (ed) Law, Rights and Discourse: The Legal Philosophy of Robert Alexy (Oxford: Hart Publishing, 2007) 134. See eg H. L. Black Constitutional Faith (New York: Knopf, 1968) 45. We will see in Chapter 4 how this familiar understanding of Black’s position is a caricature.

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Excepting the US Bill of Rights, most charters of rights explicitly guide the limitation process; they do so either by providing for a single, overarching limitation or by providing for a series of right-specific limitation clauses, all of which articulate a process according to which a right may be limited. In some cases, there are multiple limitation clauses, each specific to a right. For example, the European Convention on Human Rights has a number of right-specific limitation clauses, as illustrated by Article 10: 1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary. The European Convention contains a series of similar limitation clauses, all positioned after the initial right’s declaration. The clauses mirror each other in large measure, but differ in their specification of the ‘interests’ of a democratic society that may be pursued in limiting the right. For example, the Convention provides for the following in some but not all of its limitation clauses: morals,26 health,27 public order,28 the prevention of disorder or crime,29 public safety,30 national security,31 the economic well-being of the country,32 territorial integrity,33 and rights and freedoms.34 Either through its supranational application or by virtue of being incorporated directly through domestic legislation (as in the United 26 27 28 29 30 31 32 34

European Convention, arts. 6(1), 8(2), 9(2), 10(2), 11(2). European Convention, arts. 8(2), 9(2), 10(2), 11(2). European Convention, arts. 6(1), 9(2). European Convention, arts. 8(2), 10(2), 11(2). European Convention, arts. 8(2), 9(2), 10(2), 11(2). European Convention, arts. 6(1), 8(2), 10(2), 11(2). European Convention, art. 8(2). 33 European Convention, art. 10(2). European Convention, arts. 8(2), 9(2), 10(2), 11(2).

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Kingdom), this structure of rights’ guarantees and rights-specific limitation clauses applies to all of the Member States of the Council of Europe. The charters of rights adopted after the European Convention have tended to provide for a single, overarching limitation clause applicable to all rights, rather than a series of right-specific clauses.35 For example, the German Basic Law provides all have a right to the free development of their personality ‘to the extent that they do not infringe on the rights of others or offend against the constitutional order or public morals’.36 In addition to this architectural difference, the post-European Convention limitation clauses have generally tended to avoid specifying the permissible interests of a political society that may be pursued in limiting a right, leaving open the concept of a ‘democratic society’. For example, the first section of the Canadian Charter of Rights and Freedoms provides: The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

The limitation clause of the New Zealand Bill of Rights reproduces, in almost identical language, the same overarching limitation clause of general applicability to all rights.37 More recent charters of rights have also provided for a single, encompassing limitation clause applicable to all rights, but have sought to provide further guidance to the process of limitation. As will be seen below, this further specification of the process of limitation draws on and codifies in part the jurisprudence developed by courts under the received approach to the limitation of rights. For example, the limitation clause of the South African Bill of Rights provides: The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors, including -

35

36 37

For a general limitation clause adopted before the European Convention, see the Universal Declaration of Human Rights, art. 29(2): ‘In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.’ Basic Law of the Federal Republic of Germany, art. 2(1). New Zealand Bill of Rights, s 5.

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the nature of the right; the importance of the purpose of the limitation; the nature and extent of the limitation; the relation between the limitation and its purpose; and less restrictive means to achieve the purpose.38

Whereas the opening paragraph of this limitation clause draws on the wording of the limitation clauses of the Canadian Charter and the New Zealand Bill of Rights, the enumerated factors draw on the proportionality and balancing analysis developed by the Constitutional Court of South Africa, which in turn mirror the received approach.39 Taking inspiration from perceived best practices, the Human Rights Act of the Australian Capital Territory and the Charter of Human Rights and Responsibilities Act of the Victorian state both provide for a single, encompassing limitation clause mirrored on the Canadian Charter and New Zealand Bill of Rights and, in addition, add the specific factors outlined in the South African Bill of Rights.40 It would now appear that the ‘Canadian model of a general limitations clause, embellished by the South African proportionality inquiry, has become the dominant model among advanced constitutional democracies’.41 These few examples disclose different possibilities for guiding the process for limiting rights, including the number of limitation clauses (a single overarching clause versus a series of right-specific clauses), the permissible ends of limitation (an open-ended reference to a ‘free and democratic society’ versus an enumeration of permissible public interests such as morals, health and public order), and the structure of limitation clauses (an underspecified process of limitation versus a series of ends– means considerations that should animate the process). Yet, despite these and other differences of form and detail, there is a strikingly similar orientation to all limitation clauses. For one, they make explicit the necessity of delimiting the open-ended rights’ guarantees into more concrete propositions apt to be applied to resolve rights disputes. Of course, it does not follow that absent a limitation clause, an open-ended 38 39

40

41

Constitution of the Republic of South Africa, s 36(1). See S v. Makwanyane & Another 1995 (3) SA 391, 436 (Constitutional Court of South Africa) and Certification of the Constitution of the Republic of South Africa, 1996 (4) SA 744, 804–805 (Constitutional Court of South Africa) (‘[the limitation clause] is substantially a repetition of what was said in that judgment [Makwanyane]’). Human Rights Act (Australian Capital Territory), s 28; Charter of Human Rights and Responsibilities Act (Victoria), s 7. Schauer ‘Freedom of Expression Adjudication in Europe and America’ 53.

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right’s guarantee is in no need of limitation. The rights of the US Constitution are in many respects no more and no less specified in their founding text than are the rights of the European Convention, Canadian Charter or South African Bill of Rights. The absence of an American limitation clause does not thereby suggest that the US Constitution provides for unlimited rights. The jurisprudence of the US Supreme Court – together with its appeals to ‘compelling state interests’, ‘rational basis’, and ‘proportion’ – disclose the judiciary’s efforts to articulate a process of limitation necessitated by the open-ended formulations of rights but nowhere explicitly guided in the constitutional text itself.42 In addition, the overlapping formulations of the limitation clauses reviewed above disclose that all appeal to the concepts of limitation (‘limitation’, ‘restrictions, formalities, conditions, penalties’, ‘interference’), justification (‘as can be demonstrably justified’, ‘justifiable’, ‘necessary’), democratic society (‘democratic society’, ‘free and democratic society’, ‘open and democratic society’), and prescribed by law (‘prescribed by law’, ‘provided by law’, ‘in accordance with law’). Indeed, it would seem that whether the key words are ‘“reasonableness” in India and Japan, “toleration” in Israel, “strict scrutiny” in the United States’ or otherwise elsewhere, a similar approach can be discerned.43 Revealing what is perhaps growing to be an instance of what some term ‘global constitutionalism’,44 the received approach to the limitation of rights would appear to have taken hold of judges and scholars. The jurisprudential approach to rights and the proportionality of their infringements has been received in the case law of the European Court of Human Rights,45 the German Federal Constitutional Court,46 the 42

43 44

45

46

While my focus will be on limitation clauses and therefore not on American jurisprudence, some have argued that there are important similarities between American and European and other approaches to the limitation of rights: see Schauer ‘Freedom of Expression Adjudication in Europe and America’; S Sottiaux Terrorism and the Limitation of Rights: The ECHR and the US Constitution (Oxford: Hart Publishing, 2008); V. C. Jackson ‘Ambivalent Resistance and Comparative Constitutionalism: Opening up the Conversation on “Proportionality”, Rights and Federalism’ (1999) 1 University of Pennsylvania Journal of Constitutional Law 583. Beatty Ultimate Rule of Law 163 (footnote omitted). See A. S. Sweet and J. Mathews ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 27; Gardbaum ‘Limiting Constitutional Rights’ 792. Handyside v. United Kingdom (1976) Series A no 24 (1979–80) 1 EHRR 737; Olsson v. Sweden (1988) Series A no 130 (1989) 11 EHRR 259. Alexy Theory of Constitutional Rights.

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Supreme Court of Canada,47 the New Zealand Court of Appeal,48 the Israeli Supreme Court,49 the British House of Lords,50 the Judicial Committee of the Privy Council,51 as well as the courts in central and eastern Europe.52 Indeed, the pull towards the received approach has led the European Court of Human Rights to apply proportionality and balancing analyses to all Convention rights, claiming that the ‘search for this balance is inherent in the whole of the Convention’.53 From its German origins, the received approach to the limitation of rights now dominates scholarship and jurisprudence throughout Europe, the Commonwealth and Israel with a common constitutional grammar and an adjudicative structure that severs the definition of a right from its limitation.54 Under the received approach, the analysis of a rights-claim begins with a focus on the right, and questions: does the impugned State action interfere with a right? In the event that a right has been interfered with, the analysis then turns to the limitation clause and permissibility of the interference. Appeals to proportionality and balancing condition the evaluation of the right’s infringement, with many viewing the ‘idea that a constitution could exist without some standard of proportionality [as] a logical impossibility’.55 Before turning to an examination of each stage of the analysis under the received approach to the limitation of rights, a word on the present 47

48 49

50

51

52

53

54

55

R v. Oakes [1986] 2 SCR 103 (Supreme Court of Canada). The Supreme Court has only recently acknowledged that its limitation clause analysis ‘mirrors the elements of this idea of proportionality’ borrowed from Germany and the European Court of Human Rights: Canada (Attorney General) v. JTI-Macdonald Corp [2007] 2 SCR 610 [36] (Supreme Court of Canada). Ministry of Transport v. Noort [1992] 3 NZL Rev 260, 283 (Court of Appeal). HCJ 2056/04 Beit Sourik Village Council v. Government of Israel [2004] IsrSC 49 (Supreme Court of Israel). R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 (House of Lords) following the European Court’s disapproval of Wednesbury review in Smith and Grady v. United Kingdom (2000) 29 EHRR 493; cf R v. Home Secretary, ex parte Brind [1991] 1 AC 696, 766–767 (House of Lords). de Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Lands, and Housing (1999) 1 AC 69 (Judicial Committee of the Privy Council). W. Sadurski Rights Before Courts: A Study of Constitutional Courts in Postcommunist States of Central and Eastern Europe (Dordrecht: Springer, 2005) ch 10. Sporrong and Lönnroth v. Sweden (1982) Series A no 52 (1983) 5 EHRR 35, 52; Appleby and Others v. United Kingdom (2003) 37 EHRR 783 [40]; J Rivers ‘Proportionality and Variable Intensity of Review’ (2006) 65 Cambridge Law Journal 174, 182. See B. W. Miller ‘Justification and Rights Limitation’ in G. Huscroft (ed) Expounding the Constitution: Essays in Constitutional Theory (New York: Cambridge University Press, 2008). Beatty Ultimate Rule of Law 163.

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focus. Because the goal of this chapter is to re-present and to re-construct the received approach to the limitation of rights, my targets are the structural and philosophical features of the limitation analysis rather than its effects on the court–legislature relationship.56 No doubt, the decision to divorce institutional dynamics from the study of the jurisprudence of limitation clauses neglects important aspects of the received approach. Nevertheless, I will not focus on how the institutional relationship between court and legislature has affected and has been affected by this framework. The frequent references to the case law of the court should not suggest otherwise. Rather, my recourse to the jurisprudence results from the fact that, according to the received approach, the court is the institution responsible for rights and is ‘empowered to give the final ruling’ on the permissibility of a right’s limitation.57 As I will argue in the following chapter, the difficulties with the received approach to the limitation of rights are not only at the level of its implementation by courts; the problems are deeper, within the architecture and logic of analysis itself.

B

The radiating effect of rights

The two-stage analysis – rights first, limitations second – that marks the received approach to the limitation of rights no doubt draws on the division between the right’s declaration, on the one hand, and the limitation clause, on the other. As a result, rights have benefited from a generous reading, with some suggesting that the scope and content of rights has been ‘inflated’ at the first stage of analysis.58 Given that limitations come into play only at the second stage, rights are generally taken to be limitless, leading one to question: What does one have by virtue of a right’s guarantee? What instances of expression come within freedom of expression? Of personal activity within the right to liberty? Of discrimination within the right to equality? In other words, what is determined at the first stage of the received approach to the limitation of rights? As we will see, the answer to each question is both very much and, also, very little. 56

57 58

Only in Chapter 6 will we turn to the role of the courts in evaluating the limitation of rights. See Handyside v. United Kingdom [49]. See Letsas A Theory of Interpretation of the European Convention on Human Rights 4, 126–30.

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1

Principles, interests and values

Under the received approach, rights receive a ‘broad and comprehensive’59 reading, allowing them to have ‘radiating effect’60 and to become ‘ubiquitous’ in all areas of law.61 Any interpretive approaches which could freeze (eg originalism) or restrain (eg textualism) their otherwise expansive scope are rejected in favour of a ‘living instrument’ or ‘dynamic and purposive’ approach.62 As a general proposition, the received approach excludes concerns unrelated to the right broadly understood from the determination of the right’s scope. Rights should be interpreted in a ‘generous and liberal manner’ and should focus on ‘individual interests’ alone.63 Other interests may be sufficient to justify the infringement of a right, but they are no part of the definition of the right. If concern for the rights of others or considerations other than the purpose of a right are relevant, they may be raised at the stage of the limitation clause analysis. In this way, all limits are framed as being external to, not part of the right; they are exceptions to the right, circumvent its scope, and restrict its otherwise limitless application. Indeed, for some, ‘constitutional rights need not have external limits’.64 The received approach appeals to different terms as almost synonymous with rights: rights are said to protect interests or values. Thus, courts may speak of an individual’s interest in self-fulfilment, however 59 60

61 62

63 64

R. Alexy ‘Constitutional Rights, Balancing, and Rationality’ (2003) 16 Ratio Juris 131, 131–2. I am uncertain whether, for Alexy, the ‘radiating effect’ of rights is a function of his account of principles or not: see Theory of Constitutional Rights 354. The expression ‘radiating effect’ originates in the Lüth Case BVerfGE 7, 198 (1958) (summarized in D. P. Kommers The Constitutional Jurisprudence of the Federal Republic of Germany (2nd edn, London: Duke University Press, 1997) 361–9), where the Constitutional Court appeals to it in order to describe how ‘the objective values of the Constitution affect all areas of law’ (Kommers Constitutional Jurisprudence 368). Irrespective of Alexy’s reason for appealing to the expression, understanding rights as principles makes them not only consistent with a radiating effect, but also promotes that effect. Alexy Theory of Constitutional Rights 47–8, 417. See Vienna Convention on the Law of Treaties, art. 31; Tyrer v. United Kingdom (1978) Series A no 26 (1980) 2 EHRR 1; Airey v. Ireland (1979) Series A no 32 (1979–1980) 2 EHRR 305 [26]; Golder v. United Kingdom (1975) Series A no 18 (1979–80) 1 EHRR 524 [29]; R v. Big M Drug Mart [1985] 1 SCR 295, 344 (Supreme Court of Canada); S v. Makwanyane 1995 (3) SA 391, 403 (Constitutional Court of South Africa); A. Barak Purposive Interpretation in Law (Princeton: Princeton University Press, 2005); Letsas A Theory of Interpretation of the European Convention on Human Rights 11, 59. See eg Sottiaux Terrorism and the Limitation of Rights 35–6. Gardbaum ‘Limiting Constitutional Rights’ 809.

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conceived, as within the scope of the right to liberty or the value of expressing oneself, however obscene to others, as within the scope of freedom of expression. This malleability of rights has been aptly captured by the idea that rights are principles. Although the constitutional lexicon speaks of interests and values, this is only an indirect way of referring to principles,65 for all references have the following in common: rights do not represent ‘fixed points in the field of the factually and legally possible’.66 The application of a rule in any given factual and legal matrix is said to proceed independently of its ‘weight’ or ‘background justification’; it does not admit of degree. By contrast, principles are ‘norms which require that something be realized to the greatest extent possible given … legal and factual possibilities’.67 The application of a principle is always prima facie. Identifying a principle is never conclusive, but merely suggestive that there is an interest or a value that warrants consideration. Understood as a principle, a right is merely a reason ‘that can be displaced by other reasons’.68 For this reason, the scope of rights encompasses both the fundamental and the mundane. Under the received approach, it is no embarrassment to suggest that one has a constitutional liberty right to feed pigeons in public squares,69 to ride horses in public woods70 or to smoke marijuana for recreational purposes.71 Nor is it surprising to suggest that one’s freedom of expression extends to all activity that conveys or attempts to convey a meaning, including hate propaganda, libel and perjury.72 Each one of these instances of the right to liberty or freedom of expression contains some interest or value that warrants consideration. Understanding the right in play as a principle allows it to play a tentative or contingent role, such that admitting an interest or value as within the scope of a right at this stage is less pressing (the ultimate question is resolved at the limitation clause analysis) and, therefore, almost without consequence. As a result, most interests and values qualify for recognition within a right and in turn, most legislation can be found to infringe at least one 65

66 67 68 69 70 71

72

Alexy Theory of Constitutional Rights 44–5. See also 86 (‘values can be reformulated in terms of principles and vice versa without loss of meaning’). Alexy Theory of Constitutional Rights 48 (emphasis omitted). Alexy Theory of Constitutional Rights 47 (footnote omitted). Alexy Theory of Constitutional Rights 47. BVerfGE 54, 143 (147) (Federal Constitutional Court). BVerfGE 39, 1; BVerfGE 88, 203 (Federal Constitutional Court). R v. Malmoe-Levine [2003] 3 SCR 571 (Supreme Court of Canada); BVerfGE 54, 143 (147) (Federal Constitutional Court). See eg Irwin Toy v. Quebec [1989] 1 SCR 927, 969 (Supreme Court of Canada).

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protected interest or value. Indeed, the consequence of such an expansive understanding of rights has been described as leading to the ‘total constitution’73 – the idea that there is nothing that rights do not cover, nothing that is not within their reach. The ‘resolution of any and every political question’, the ‘validity of any and every political decision’ can be evaluated with respect to rights.74 But despite (indeed, perhaps as a consequence of) the expansive scope of a right, it does not follow that all that interferes with it should be withdrawn. Indeed, the mere presence of a right does not resolve the question of legislative force or determine the validity of a decision. Rather, it is but the beginning of the process. Conceived as principles, rights under the received approach are understood to be ‘optimization requirements’.75

2

Rights as optimization requirements

Under the received approach, to claim a right against State action is effectively (little more than) to trigger a judicial assessment as to whether the right has been sufficiently ‘optimized’ in the circumstances. Properly understood, a rights-claim is not a claim that a given legislative measure is altogether impermissible – the right is neither a trump, nor a firewall, nor does it benefit from lexical priority. In all cases, the right’s degree of optimization will be contingent on the ‘weight’ of the right in the factual and legal circumstances, which is evaluated at the second stage of analysis with the principle of proportionality.76 At this first stage, the only question is whether the claimed interest or value falls within the scope of a right. Because having a right provides one with very little, there is little obstacle to recognizing an activity as within the scope of a right. All turns on the ‘optimization’ of the right according to the principle of proportionality. To claim that a right can be optimized is to present the right as a matter of degree rather than as a fixed point. If a right is understood as 73

74 75

76

M. Kumm ‘Who is Afraid of the Total Constitution? Constitutional Rights as Principles and the Constitutionalization of Private Law’ (2006) 7 German Law Journal 341. Kumm ‘Who is Afraid of the Total Constitution?’ 343. See Alexy Theory of Constitutional Rights ch 3. See also 84–6 for discussion of how a constitutional rights-provision has a double aspect: a constitutional rights-principle and a constitutional rights-rule. The rule provides that the principle ought to be optimized according to the principle of proportionality. Alexy Theory of Constitutional Rights 50.

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a rule, it is indistinguishable from other legal norms: it is, no doubt, at the ‘highest level of a legal system’ and of the ‘greatest importance’, but its ‘structure’ differs not from other legal norms.77 But conceived as a principle, a right may be optimized to a greater or lesser degree. On this basis, the question whether a constitutional right is engaged is relatively easy to secure: given that in any one case a right may be optimized only to a minimal degree, the question of its application is less pressing;78 the right is merely a premise in practical reasoning, not the conclusion to further debate. For this reason, there appear to be ‘no obvious reasons for narrowly defining the scope of interests protected as a right’; after all, some will ask: ‘Shouldn’t all acts by public authorities affecting individuals meet the proportionality requirement?’79 The significance of the idea of ‘optimization’ in relation to rights is important, and may be grasped by contrasting it with ‘maximization’.80 Roughly stated, the idea of ‘maximization’ directs one to identify a ‘value’ (eg utility, happiness), to evaluate to what extent a right participates in that value, and to give effect to the right only to that extent. In this way, it is the ‘value’ – not the right – that is maximized. By contrast, the idea of ‘optimization’ does not require the identification of a single, external value to be maximized. Rather, one should seek to realize each right according to its own value – each right identifies its own measure for optimization. We will see that under the principle of proportionality, the competing principle to the right – that is, the public interest or social value being pursued in infringement of the right – is also to be optimized according to its own value. At this first stage of determining the scope of the right, a claimant bears the burden of establishing that legislation infringes a right. That said, rare are decisions where the individual does not succeed in demonstrating that the claim is within the scope of an interest or value encompassed within a right, especially where the bill of rights provides for a general right to liberty or to equality. As a result, almost all rightsdisputes are decided under the limitation clause and the concomitant analysis of proportionality and balancing.

77 78

79 80

Alexy ‘Constitutional Rights, Balancing, and Rationality’ 132. R. Alexy ‘On Balancing and Subsumption. A Structural Comparison’ (2003) 16 Ratio Juris 433, 435–6. Kumm ‘Political Liberalism and the Structure of Rights’ 140. I am indebted to Luc B. Tremblay for discussions on this point.

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C The proportionality and balancing of limitations It is a commonplace under the received approach that no right is absolute.81 Rights are not fixed points, but rather principles subject to optimization. The question to be determined at the second stage of the received approach is in which instances and according to what evaluation the infringement of a right may be upheld or saved. In other words, the question is whether the right has been sufficiently optimized by the impugned measure. Given this, the received approach sees balancing and proportionality analyses as ‘unavoidable, since there is no other rational way in which the reason for the limitation can be put in relation to the … right’.82 The extent to which the judiciary and academia have embraced the received approach leads one to the conclusion that the principle of proportionality is ‘a universal criterion of constitutionality’ and ‘an essential, unavoidable part’ of charters of rights.83 It is at this stage that a ‘community-perspective’ may be brought to bear according to which a right will, at times, have to yield to ‘community interests’ and ‘community values’. The second stage of the received approach engages in a balance between rights and ‘competing public interests’, ‘the general interest of the community’, ‘collective goals’, and ‘collective interests’,84 to name but some of the recurring labels. Like rights, the public interests are also conceived as principles to be optimized. And, according to the received approach, the optimization of conflicting principles ‘implies the principle of proportionality’.85 Because the scope of the right has been identified at the first stage, interference with an instance of protected activity constitutes an interference with the right. In the lexicon of the received approach, it is said that 81

82

83 84

85

See Alexy Theory of Constitutional Rights 62; Letsas A Theory of Interpretation of the European Convention on Human Rights 85. Alexy Theory of Constitutional Rights 74; see also Rivers ‘Proportionality and Variable Intensity of Review’ 190. Beatty Ultimate Rule of Law 162; S v. Makwanyane 436. Alexy Theory of Constitutional Rights 62; Sottiaux, Terrorism and the Limitation of Rights 35; Letsas A Theory of Interpretation of the European Convention on Human Rights 80–81, 89; Greer ‘“Balancing” and the European Court of Human Rights’ 412, 417; Rivers ‘Proportionality and Variable Intensity of Review’ 182; James and others v. United Kingdom (1986) Series A no 98 (1986) 8 EHRR 97 [50] and Kokkinakis v. Greece (1993) Series A no 260-A (1994) 17 EHRR 397 [47]. Alexy Theory of Constitutional Rights 66. It bears mention that Alexy recognizes that the principle of proportionality is not a principle, but rather a rule: it is not to be balanced against other principles, but applied according to its terms (66–7 n 84).

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legislation prohibiting hate propaganda or criminalizing assisted suicide or setting eighteen as the minimal age for voting ‘infringes’, ‘impairs’, ‘interferes with’, ‘is inconsistent with’, ‘makes an exception to’, and ‘circumvents’ the right. There is, in order words, some interest or value in each case that the legislation interferes with. Indeed, because rights have a radiating effect and are ubiquitous in all areas of law, almost all pursuit of the ‘public interest’ infringes a right and calls for a limitation analysis. Because the limitation stage analysis can allow for the infringement of a right to be sanctioned, some call for a restrictive reading of limitation clauses.86 Moreover, despite the appeal to balancing, some call for the burden of justifying the infringement of a right to be a high one; in the words of the Supreme Court of Canada, ‘any [limitation clause] inquiry must be premised on an understanding that the impugned limit violates constitutional rights’.87 In this way, it is often said that the justification for the limitation must be ‘convincing and compelling’ and not merely reasonable or plausible.88 Moreover, any margin of appreciation awarded to legislatures must be circumscribed, lest too much weight be awarded to the public interest to the detriment of the right. Despite some dissent and divergences, the principle of proportionality provides the dominant framework for evaluating the justification of a right’s infringement. Under European, German, Canadian, British, Israeli and South African jurisprudence, among others, the principle of proportionality proceeds according to the following four inquiries:89 First, the objective of the legislation setting out the limitation must be of sufficient importance to warrant infringing a right (public interest objective). Second, the means in service of the objective should be rationally connected to the objective (suitability).

86

87 88

89

Funke and others v. France (1993) Series A no 256-A (1993) 16 EHRR 297 [55]; Klass v. Germany (1978) Series A no 28 (1979–1980) 2 EHRR 214 [42]; Sunday Times v. United Kingdom (1979) Series A no 30 (1979–1980) 2 EHRR 245 [65]; Greer, The Exceptions to Articles 8 to 11 8. R v. Oakes 135. ÖZDEP v. Turkey (2001) 31 EHRR 674 [44]; Autronic AG v. Switzerland (1990) Series A no 178 (1990) 12 EHRR 485 [61]; Weber v. Switzerland (1990) Series A no 177 (1990) 12 EHRR 508 [47]. See Alexy Theory of Constitutional Rights; Beatty Ultimate Rule of Law 163; Handyside v. United Kingdom; R v. Oakes; S v. Makwanyane; M. Fordham and T. de la Mare ‘Identifying the Principles of Proportionality’ in J. Jowell and J. Cooper (eds) Understanding Human Rights Principles (Portland, Oregon: Hart Publishing, 2001).

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Third, the means should impair the right as little as possible (necessity). Fourth, the deleterious effects on the right should be proportional to the public interests’ beneficial effects (proportionality stricto sensu or the Law of Balancing). These sub-principles, like the principle of proportionality that they constitute, are expressions of the idea of optimization.90 A measure will not be suitable if it interferes with a right unless it promotes another principle, nor will it be necessary if, assuming two measures are equally suitable, the measure which interferes less is not adopted.91 The third subprinciple – proportionality in the strict sense – provides for a balance between the right and the competing public interest objective; that is, ‘[t]he greater the degree of non-satisfaction of, or detriment to, one principle, the greater the importance of satisfying the other’.92 The first and the last queries – the public interest principle and balancing – examine what is legally possible: they involve an examination of principles and their relationship to each other. The second and third queries – suitability and necessity – examine what is factually possible: they examine what means can be employed in pursuit of the public interest principle.93

1

Public interest objective

The limitation of a right is always in pursuit of another end. In the language of the European Convention, a right is limited in the interests of national security,94 territorial integrity,95 public safety,96 the economic well-being of the country,97 the prevention of disorder or crime,98 the protection of health or morals,99 the protection of the reputation of others,100 or the protection of the rights and freedoms of others,101 among others. These interests are not all found in all articles, which may give rise to conceptual challenges. For example, how should one interpret the fact that some articles of the Convention refer to ‘protecting the rights and freedoms’ of others, while other articles refer to the ‘reputation or rights of others’?102 Should one 90

91 93 95 97 99 101 102

R. Alexy ‘Balancing, constitutional review, and representation’ (2005) 3 International Journal of Constitutional Law 572, 572–3. 92 Alexy Theory of Constitutional Rights 68–9. Alexy Theory of Constitutional Rights 102. 94 Alexy Theory of Constitutional Rights 67. European Convention, art. 8(2), 10(2), 11(2). 96 European Convention, art. 10(2). European Convention, art. 8(2), 9(2), 10(2), 11(2). 98 European Convention, art. 8(2). European Convention, art. 8(2), 9(2), 10(2), 11(2). European Convention, art. 8(2), 9(2), 10(2), 11(2). 100 European Convention, art. 10(2). European Convention, art. 8(2), 9(2), 10(2), 11(2). European Convention, arts. 8(2), 9(2), 11(2) refer to the ‘rights and freedoms of others’ but art. 10(2) makes no reference to the ‘freedoms of others’.

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conclude that certain rights cannot be limited in the name of protecting the ‘freedoms’ of others, but only in the name of the ‘rights’ of others? Should one conclude that ‘reputation’ is not a right, given that it is listed in addition to ‘rights’? While the enumerated lists of permissible interests under each of the European Convention’s limitation clauses purport to be exhaustive, and while the Convention itself specifies that the ‘restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed’,103 the received approach generally admits the legislature’s public interest as falling within one of the enumerated heads of permissible objectives. In applying the limitation clauses of the Convention, the European Court of Human Rights has not necessarily sought to ground legislative objectives under one of the heads of a given limitation clause.104 Rather, the open-ended reference to ‘democratic society’ is often used to evaluate the validity of the public interest. In this way, the approach taken under the limitation clauses of the European Convention is similar in orientation to the approach taken under the Canadian Charter, South African Bill of Rights, New Zealand Bill of Rights and the legislative charters of rights in Australia – none of which specify the permissible ends of a democratic society. Although there are exceptions, it would appear that most public interests are eligible to limit a right.105 Indeed, under the received approach, a public interest is easily admitted as permissible primarily because little turns on its recognition. Like acknowledging an interest, value or principle as within the scope of a right at the first stage of analysis, acknowledging a public interest as within the realm of permissible public ends at the second stage is almost without consequence. Under the principle of proportionality, the public interest is conceived in the same way as a right: a principle for optimization. The public interest principle may be optimized only to a small degree; it may be awarded little weight. For this reason, the received approach does not generally disqualify public interests at the outset, preferring to leave the 103 104

105

European Convention, art. 18. See F. G. Jacobs ‘The “Limitation Clauses” of the European Convention on Human Rights’ in A. L. C. de Mestral and others (eds) The Limitation of Human Rights in Comparative Constitutional Law (Cowansville, Quebec: Yvon Blais, 1986) 30. Alexy Theory of Constitutional Rights 62, 80; Beatty Ultimate Rule of Law 92; Sottiaux, Terrorism and the Limitation of Rights 43; Rivers ‘Proportionality and Variable Intensity of Review’ 191.

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principle of proportionality proceed to examining suitability, necessity and balancing. Thus, although it is generally recognized that this first component of the proportionality analysis engages a normative assessment of the ‘legitimacy’ or ‘necessity’ of legislative objectives, in practice little evaluation is undertaken. Now, on some occasions, it is maintained that a public interest principle will not be receivable. Certain principles ‘would be declared invalid on their first encounter with other principles’.106 For example, the House of Lords has concluded that the more favourable treatment of heterosexual couples with respect to the definition of ‘spouse’ in the definition of an eligible succeeding tenant fell ‘at the first hurdle: the absence of a legitimate aim’.107 The Supreme Court of Canada similarly rejected the public interest objective in relation to Sunday-closing legislation when it was discovered that, despite plausible alternatives, the goal was to promote the Christian day of rest – an inadmissible end for limiting freedom of religion.108 In this way, one might say that under the received approach, the ‘problem of the invalidity of principles is concerned with extremely weak principles, that is, with principles which in no case take precedence over other principles’.109 This frames the ‘invalidity’ of a principle in terms of its minimal optimization in all the circumstances. In the same way that the language of rights is generally taken to be synonymous with interests, values and principles, so is the language of public interests. The jurisprudence and scholarship refer indiscriminately to ‘collective goals’, the ‘collective interest’, the ‘public interest’, ‘social interests’, ‘community goals’, the ‘State interest’ and ‘community values’. The range in vocabulary merely reflects the fact that the public interest principle, like the right principle, is not ‘a fixed point in the legal and factual matrix’ but rather subject to optimization. The other components of the principle of proportionality determine the degree of optimization as against the optimization of the right.

106 107

108 109

Alexy Theory of Constitutional Rights 61. Ghaidan v. Godin-Mendoza [2004] 2 AC 557 [18] (House of Lords). In the European Court, see eg Darby v. Sweden (1990) Series A no 187 (1991) 13 EHRR 774. See R v. Big M Drug Mart. Alexy Theory of Constitutional Rights 62 (emphasis added). Elsewhere, Alexy states that ‘a principle is relevant to the adjudication of constitutional rights under the Basic Law when it can correctly be cited for or against a decision … for obvious reasons much less use is made of the possibility of disputing validity than of disputing the abstract or concrete weight of principles’: Theory of Constitutional Rights 80.

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The more important query at this juncture is to determine the level of generality with which the competing principle is articulated. In some cases, the more general the objective, the more important it appears. Given the importance of the objective for evaluating legislative means, the level of generality with which the objective is stated influences the result considerably. The more general the objective, the more likely the means will be found to be the least restrictive. At other times, if the public interest objective is stated too specifically, the proportionality analysis collapses into a single question. For example, if the legislative objective is identified not as ‘protecting the British people from the risk of catastrophic Al-Qaeda terrorism’ but rather as ‘protecting the British people from the risk of catastrophic Al-Qaeda terrorism by giving the Home Secretary the power to detain foreign terrorist suspects without trial’, this effectively amounts to determining the outcome of the proportionality analysis.110

2

Suitability

Excepting those rare instances where the principle being pursued by the legislature is rejected, it will be the means employed to optimize the competing principle that unjustifiably interfere with the right. For this reason, the proportionality analysis must determine whether the means are suitable for the competing principle. In other words, do they further the principle? The question here is not whether better means are available or whether the means are over- or under-inclusive or whether they are ineffective.111 Rather, the sole filter being applied here is whether the right is being interfered with without reason: in other words, are the means capable of pursuing the public interest objective? Together with the necessity assessment that follows, the suitability assessment aims to discover what is factually possible: can the means pursue the public interest principle? Despite the emphasis on a factual foundation, the causal relationship between the principle and the means need not exclusively be established according to evidence, but may rest on common sense, reason or logic.112

110 111

112

Rivers ‘Proportionality and Variable Intensity of Review’ 188. Unless the ineffectiveness of the means is total, at which point they fail to pursue the objective: Rivers ‘Proportionality and Variable Intensity of Review’ 188–9. See RJR-MacDonald v. Canada [1995] 3 SCR 199 [86], [154]-[158], [184] (Supreme Court of Canada).

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3

Necessity

Are the means interfering with the right necessary? The question here is whether less impairing, but as effective means are available. If the means are over-inclusive, they interfere with the right more than necessary to achieve their objective. If alternative less-interfering means are available which satisfy the objective, then there is no need to interfere with the right to the current extent. But if there are no means less infringing of the right which could achieve the legislative objective as effectively, then the necessity evaluation has been satisfied. In that case, the right is infringed ‘no more than necessary’ and ‘as little as reasonably possible’. As with the suitability evaluation, necessity operates within the world of the factual. Given two legislative schemes, both of which pursue the public interest principle as effectively, the one that impairs the right less must be selected; otherwise, the right is not being optimized to the greatest extent possible and the degree of its impairment is not necessary. This requires both the design of hypothetical alternatives and the ability ‘to rank ordinally various states of affairs according to their level of realisation of the public interest’.113 Now, the minimal impairment criterion has not been read as requiring a unique legislative design to pursue a given objective. The received approach accepts that legislative means will satisfy the necessity requirement if they figure among a ‘range of reasonable alternatives’.114 A ‘reasonable’ alternative does not mean an ‘equally least restrictive’ alternative; rather, the idea of ‘reasonable alternatives’ may be understood as the realization that the legislative drafting process does not admit of perfection, that it is impossible adequately to measure the concept of minimal impairment, and that there is likely no one identifiable minimally impairing alternative. For some courts, this third component marks the end of the principle of proportionality.115 The strict proportionality analysis is often dismissed with little or no discussion, which has led some commentators to conclude that an inquiry into strict proportionality is altogether ‘redundant’ because no valid public interest objective that is pursued with suitable and necessary means could fail the balancing assessment.116 113 114 115

116

Rivers ‘Proportionality and Variable Intensity of Review’ 198. See RJR-MacDonald v. Canada [160]; JTI-Macdonald Corp v. Canada [43]. Rivers ‘Proportionality and Variable Intensity of Review’ 179; Sweet and Mathews ‘Proportionality Balancing and Global Constitutionalism’. See P. W. Hogg ‘Section 1 Revisited’ (1991–1992) 1 National Journal of Constitutional Law 1, 24.

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Yet, this supposes that what is factually optimal (suitability, necessity) is also legally optimal (balancing). In truth, however, the first three components of the principle of proportionality act as filters for proportionality strictu sensu, which is ‘the only place where the attainment of the objective may be weighed against the impact on the right’.117 An alternative reading for why some courts conclude the proportionality analysis at the necessity component seems more plausible: some judges choose to resist balancing interests explicitly, no doubt in part because they consider this to be a task better reserved to the legislature. It is said that the balancing analysis not only does not ‘camouflage judicial lawmaking’, it requires courts ‘to acknowledge and defend – honestly and openly – the policy choices that they make’.118 Now, the refusal by some courts occasionally or systematically to engage with the last component should not lead one to conclude that they fail to engage in balancing itself. It is perhaps more accurate to say that the difference between those courts (like the Supreme Court of Canada) which refuse to engage explicitly with balancing and those courts (like the European Court of Human Rights and the German Federal Constitutional Court) which actively engage in balancing competing interests lies less with their conception of the principle of proportionality than with their mode of reasoning. For example, the Supreme Court of Canada systematically engages in balancing competing interests when engaging with the necessity criterion, thereby conflating the worlds of the factually and legally possible.119 By not disclosing a methodology for its proportionality analysis, some courts merely assert rather than demonstrate their conclusions under the principle of proportionality.

4

Proportionality stricto sensu, the Law of Balancing

Even if the legislative scheme pursues a sanctioned objective in a manner that is rationally connected and minimally impairing, it is said that the 117 118

119

See JTI-Macdonald v. Canada [46]. Sweet and Mathews ‘Proportionality Balancing and Global Constitutionalism’. See also T. A. Aleinikoff, ‘Constitutional Law in the Age of Balancing’ (1987) 96 Yale Law Journal 943, 984; P. W. Hogg ‘Canada: From Privy Council to Supreme Court’ in J. Goldsworthy (ed) Interpreting Constitutions: A Comparative Study (New York: Oxford University Press, 2006) 70. Sweet and Mathews ‘Proportionality Balancing and Global Constitutionalism’. See eg Eldridge v. British Columbia [1997] 3 SCR 624 [93] (Supreme Court of Canada): it is ‘impossible to characterize the government’s decision not to fund sign language interpretation [in evaluating necessity] as one which “reasonably balances the competing social demands which our society must address”.’

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effects on a right could be such that, all things considered, the infringement is disproportionate to the good of the legislative scheme. The previous components of the principle of proportionality are filters for the balancing exercise undertaken here. While the validity of the public interest principle and the suitability and necessity of the means employed to pursue it are all evaluated because a right has been infringed, the right is not otherwise engaged at all until now. The evaluation here moves beyond the world of the factually possible and questions what is legally possible. Under the lexicon of the received approach, here principles – or, more or less synonymously, values or interests – compete. As the language of competing ‘interests’, ‘values’ and ‘principles’ suggests, rights and public interest objectives compete on the same plane. It is thus that the question to be resolved by balancing principles is formulated as follows: ‘[t]he greater the degree of non-satisfaction of, or detriment to, one principle, the greater the importance of satisfying the other’.120 In other words, there must be a greater benefit to infringing the right in pursuit of the public interest than there is a loss to the right. Alexy terms this final component of the principle of proportionality the ‘Law of Balancing’ and proposes three stages which are reflected in the jurisprudence of the received approach: the first establishes the degree of interference with the right; the second establishes the importance of satisfying a competing public interest principle; and the third determines whether the importance of satisfying the competing principle justifies the interference with the right.121 In short, interference with a right by legislative measures that pursue a competing principle will be justified only by virtue of the importance of satisfying the competing principle. Intensity of interference with a right. The intensity of interference with a right is evaluated in a factual and legal matrix, not in the abstract. Interferences with a principle ‘are always concrete interferences’, which in turn means that the intensity of interference is ‘always a concrete quantity’.122 Alexy argues that it is possible to devise a scale for different intensities of concrete interference and rationally to assign a position on this scale. Following the Federal Constitutional Court of Germany, he favours a ‘triadic’ model – light, moderate, and serious interference – and attempts to demonstrate how one attributes the classification of light,

120 122

Alexy Theory of Constitutional Rights 102. 121 Alexy Theory of Constitutional Rights 401. Alexy ‘On Balancing and Subsumption’ 440.

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moderate or serious to an interference with a constitutional right.123 Assigning a classification to a concrete interference is not arbitrary: reasons should be given, which include ‘references to facts … and empirical regularities … as well as normative judgments’.124 Degree of importance of satisfying the public interest principle. Like the intensity of interference with a right, the importance of satisfying the competing principle should be measured concretely. Yet, given that the public interest principle is being promoted and not interfered with, a concrete evaluation of the importance of satisfying the competing principle is less obvious. Nevertheless, a concrete rather than abstract focus should be maintained.125 To achieve this, the degree of importance of satisfying the competing principle should be measured according to the effect that omitting the interference with the right would have for the competing principle. Alexy argues that the same triadic scale can be applied for the competing principle as is applied for the constitutional right: the importance of satisfying the competing principle is inversely proportional to the interference with the competing principle that would result if the right was not interfered with. This positions both the public interest and the right on the same scale, allowing for the balance between them to be evaluated. Balance between the right and the public interest. Let us suppose that the interference with a right is ‘serious’ and the satisfaction of the public interest principle is ‘not important’: in such a case, the legislative measure is disproportional and, thereby, an invalid limitation on the right. Conversely, if the interference with a right is ‘moderate’ and the satisfaction of a competing principle is ‘very important’, the legislative measure is proportional and, thereby, valid. These ‘straightforward cases’ should be contrasted with the case where the interference with the right is equal to the importance of satisfying the public interest principle. These cases result in a ‘stalemate situation’: both enacting the legislative scheme and refraining from doing so are ‘not disproportionate’.126 Balancing produces an ‘indifference curve’ according to which any number of ‘not disproportionate’ possibilities may be concluded.127 In this way, the legislature is left with a ‘structural discretion in balancing’ insofar as both enacting and not enacting the legislation is not contrary to the principle of proportionality. No priority 123 124 125 126 127

Alexy Theory of Constitutional Rights 402. Alexy Theory of Constitutional Rights 106. Alexy Theory of Constitutional Rights 406. Alexy Theory of Constitutional Rights 410–11. Alexy Theory of Constitutional Rights 103–5.

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is awarded to the right given that there is no abstract prioritization of principles. All evaluations are concrete.

D Ad hoc and definitional balancing What is the precedent of a judgment confirming or challenging the proportionality of a right’s infringement? Is more settled than the particular dispute between the rights-claimant and the instance of State regulation or does the principle of proportionality promote casuistic decision-making? Is balancing definitional of the relationship between a right and a competing public interest or ad hoc and re-evaluated each time? What emphasis is placed on particularities and facts versus generalities and normative evaluation? The received approach to the limitation of rights has not settled these questions. It is generally agreed that the conclusion of a proportionality analysis is what Alexy terms ‘a conditional relation of precedence in the light of the circumstances of the case’.128 The relation is conditional because no principle is prior to another principle in the absence of conditions and, ‘[g]iven other conditions, the issue of precedence might be reversed’.129 But, the scope of the ‘circumstances’ remains an open question. At times, the received approach emphasizes the ‘set of concrete facts [according to which] principle P1 has greater weight than the opposing principle P2’,130 which would suggest that the principle of proportionality is evaluated and re-evaluated on a case-by-case basis. Yet, at other times, the received approach speaks of the outcome of a proportionality analysis as establishing a rule, which would suggest that more than the immediate facts are regulated by the result.131 Because the principle of proportionality is ‘a formal (some say empty) framework of analysis’,132 much turns on whether the conditions deemed relevant for its application are particular or general. For some, the conditions are so particular, so tied to the facts, that reasoning is almost unnecessary and judges can know ‘just by looking, just by sight’ what the correct answer is;133 for others, proportionality is a gateway to an ‘exercise of general practical reasoning’ and ‘rational policy assessment’ such that a general proposition results from any balancing exercise.134 128 129 130 132 134

Alexy Theory of Constitutional Rights 52 (emphasis omitted). Alexy Theory of Constitutional Rights 52, 50. Alexy Theory of Constitutional Rights 52–3. 131 Alexy Theory of Constitutional Rights 64. Beatty Ultimate Rule of Law 98 (footnote omitted). 133 Beatty Ultimate Rule of Law 73. Kumm ‘Political Liberalism and the Structure of Rights’ 140.

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Particulars and facts

For many proponents of the principle of proportionality – with Beatty chief among them – the principle of proportionality should rely primarily on evidence. Proportionality is said to be primarily ‘an empirical [investigation for] establishing whether there are better policy alternatives than the law the government chose to enact’.135 It is a situated, ‘particularistic, case-by-case, common law approach’ that requires ‘a careful analysis of the particular interests at stake’.136 It primarily, if not exclusively, operates within the realm of the factually possible (and not only with respect to evaluations of suitability and necessity). Some courts claim that the limitation clause inquiry ‘is by its very nature a fact-specific inquiry’137 and that the evidence favouring the limitation should be ‘cogent and persuasive and make clear to the Court the consequences of imposing or not imposing the limit’.138 The validity of a right’s limitation should be established with social science and statistical evidence, expert witness reports, commission reports, and the experience of other countries.139 One should also, no doubt, submit argument, but for some courts and scholars, proportionality analysis looks primarily for evidence sustaining the merits of the infringing measure. Now, this does not, for Beatty, reduce the role of the person applying the principle of proportionality to that of performing a ‘mindless, mechanical exercise’.140 The principle of proportionality is not selfenforcing: it provides a formal framework that structures the analysis to be performed. The person applying the principle is responsible for organizing and evaluating conflicting factual claims in a manner that ‘respects the interests of everyone who is before the Court’.141 The only considerations relevant for the judge are factual: ‘proportionality transforms questions that in moral philosophy are questions of value into questions of fact’.142 By ‘[t]urning conflicts about people’s most important interests and ideas into matters of fact’, the judge is able to verify empirically whether the principle of proportionality is correctly

135 137 138 140

141

Beatty Ultimate Rule of Law 92. 136 Aleinikoff ‘Age of Balancing’ 961. RJR-MacDonald v. Canada [133] (Supreme Court of Canada) (emphasis added). R v. Oakes 138. 139 The court also allows itself to take judicial notice of some facts. Beatty Ultimate Rule of Law 98. However, at times, Beatty suggests that facts ‘speak for themselves’ (73). Beatty Ultimate Rule of Law 98. 142 Beatty Ultimate Rule of Law 170.

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applied.143 The review process is therefore ‘dedicated to trying to get as true a picture of the facts as is possible in every case’.144 The work of the judge is therefore to review all of the evidence while ‘remain[ing] completely detached from the substantive values that are at stake in a case’.145 So as to remain detached and focused on facts, the judge should not attempt to ‘evaluate the competing interests at stake against some external, objective standard or principle’ but should rather listen to and understand how – as discernable facts – ‘the affected parties’ own understanding of how significant the law being tested is for them’.146 If this is properly performed, the right answer is ‘usually pretty clear’ and judges will ‘usually have no problem identifying whose interests are paramount in any individual case’.147 The right answer is less clear and mistakes occur when one allows one’s own evaluation of the significance of a law to influence the analysis. Under the principle of proportionality, the judge seeks to articulate a demonstration, not an argumentation. Facts distance the judge from any personal responsibility. The Supreme Court of Canada’s treatment of the legislature’s decision to define the franchise in a manner that excludes prisoners is an apt illustration of the approach taken by some judges under the received approach with respect to reasons abstracted from a factual foundation. In Sauvé v. Canada (2002),148 the Canadian Court evaluated whether it was a disproportionate violation of the right to vote for the legislature to have excluded from the franchise persons serving sentences of two years or more in a correctional institution. The majority did not take well to the ‘government’s stated objectives of promoting civic responsibility and respect for the law and imposing appropriate punishment’.149 Nor did it give much credence to the ‘competing social and political policies’ and ‘competing social philosophies’ involved in the decision to define the franchise.150 Although the majority stated that a ‘legislative justification does not require empirical proof in a scientific sense’, the absence of empirical evidence to sustain the merits of the infringement of the right to vote allowed the majority to dismiss the legislative objectives as ‘rhetorical’, ‘suspect’, and a ‘simple statement of … value’.151 (In turn, however, the majority substituted its own social and political philosophy 143 145 147 148 149 151

Beatty Ultimate Rule of Law 171. 144 Beatty Ultimate Rule of Law 116. Beatty Ultimate Rule of Law 98. 146 Beatty Ultimate Rule of Law 92. Beatty Ultimate Rule of Law 98, 73. Sauvé v. Canada [2002] 3 SCR 519 (Supreme Court of Canada). Sauvé v. Canada [19] (McLachlin CJ). 150 Sauvé v. Canada [13], [139]. Sauvé v. Canada [24] (McLachlin CJ).

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for the one preferred by the legislature. In response to the Attorney General’s submission that ‘depriving penitentiary inmates of the vote sends an “educative message” about the importance of respect for the law to inmates and to the citizenry at large’,152 the majority of the Supreme Court opined that ‘denying penitentiary inmates the right to vote is [rather] bad pedagogy’ and that ‘[i]t misrepresents the nature of our rights and obligations under the law, and it communicates a message more likely to harm than to help respect for the law’.153) The dissent in Sauvé emphasized that the case rested ‘on philosophical, political and social considerations which are not capable of “scientific proof”’ and that it involved ‘justifications for and against the limitation of the right to vote which are based upon axiomatic arguments of principle or value statements’.154 Furthermore, it highlighted that the philosophy preferred by the majority of the Court, as with the philosophy preferred by the legislature, entailed ‘accepting logically prior political or social philosophies about the nature and content of the right to vote’.155 For the dissent, if ‘the social or political philosophy advanced by Parliament reasonably justifies a limitation of the right’, the legislation should be upheld as constitutional even if the legislature’s philosophy is not one that is shared by the members of the court.156 For the majority, however, it would rather appear that the legislature could satisfy its burden of justification only by relying on facts and evidence. Now, although it is the case that some aspects of a proportionality analysis are amenable to evidentiary proof, others are not. Despite this, where there is little quantitative or empirical evidence in support of a limitation, references to political morality alone will most likely be held to be an impermissible mode of justification. Assertions that the limitation in question struggles with difficult questions of political morality, coupled with the affirmation of the legislature’s democratic responsibility for making such choices, stand little chance of passing a limitation clause analysis. This is not the only approach to facts under the received approach to the limitation of rights. Beatty’s endorsement of fact-based proportionality analysis is shared by some judges and scholars, but not all. Alexy and others decline to divorce proportionality reasoning from moral evaluations, such that it is not focused on the casuistic. As a result, the outcome of a proportionality analysis will not be without precedential importance. 152 154 156

Sauvé v. Canada [29] (McLachlin CJ). 153 Sauvé v. Canada [30] (McLachlin CJ). Sauvé v. Canada [67] (Gonthier J). 155 Sauvé v. Canada [93] (Gonthier J). Sauvé v. Canada [67] (Gonthier J).

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2

Abstraction and rules

For Alexy, determining which conclusion is ‘correct after having balanced the interests depends upon value-judgments’, therefore leaving the principle of proportionality ‘open in respect of morality’.157 Proportionality and balancing, on this understanding, are reflective of the ‘structural richness of reasoning about political morality’.158 Although the particular facts of a case serve as the catalyst for the principle of proportionality, they do not exhaust the scope of the relevant considerations. In consequence, the conditional relation of precedence between the two principles being balanced will apply to other cases; it will, in short, be a rule applicable to other disputes between the two same principles.159 Now, this does not mean that the principle of proportionality engages in wholly abstract moral reasoning, seeking to establish a hierarchy of principles or a lexical ordering. It remains that the principles have ‘equal status in the abstract’ but that any one of them can have ‘greater weight’ in a given set of circumstances that go beyond immediate particulars.160 That weight is not determined by what the parties before the court claim is the importance of the principles for them; rather, what matters is ‘how important they actually are’.161 As a result, subsequent cases are ‘subsumed’ within the conditional relation of precedence because ‘the circumstances of the case’ extend beyond the immediate to the general. The received approach to the limitation of rights has not settled on an approach between the particular and the general, the factual and the moral–political, oscillating from one to the other depending on the case and depending, perhaps, on the desired result. At times, the court may wish to make a statement, assert a conclusion applicable to others; at other times, the court may wish to avoid pronouncing too much. Nevertheless, the logic of balancing and proportionality may be part of the cause for this confusion. Even if it is true that, for some proponents of the received approach, ‘constitutional judgments are only correct if they correspond to the outcome of an appropriate balancing of principles’,162 can one ever subsume a new case within an existing conditional relation 157 158 159 160 161

Alexy Theory of Constitutional Rights 365–6 (emphasis omitted), see also 4. Kumm ‘Political Liberalism and the Structure of Rights’ 133. Alexy Theory of Constitutional Rights 60. Alexy Theory of Constitutional Rights 51 (emphasis omitted). Alexy Theory of Constitutional Rights 103. 162 Alexy Theory of Constitutional Rights 210.

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of principles without re-engaging in balancing de novo? Can one not question whether a new circumstance affects the previous evaluation’s set of circumstances? Is it not the case that a court cannot avoid rebalancing unless it ‘wants to stop thinking about the question’?163

Conclusion The foregoing account of the received approach to the limitation of rights has sought to explore what animates much jurisprudence and scholarship on rights and their limitations. Being a re-statement and re-construction, this account has not exhausted the different, possible modalities of the two-stage bills of rights’ analysis, but it nonetheless presents an account that will be familiar to many. From this account, we are in a position to articulate propositions that animate the received approach to the limitation of rights. First, evaluating whether legislation violates a right proceeds according to a two-stage inquiry. The conclusion that a right has been infringed is but the first stage; the second stage is devoted to determining whether, despite infringing a right, legislation can be justified. Second, the definition of the scope of the right at the first stage is determined without taking into account other rights or considerations, all of which are relegated to the limitation analysis. All rights should be optimized to the greatest possible extent; factual and legal possibilities, evaluated only at the second stage, determine the degree of optimization. Third, the first and second stages of the analysis correspond roughly to the perspectives and interests of the individual and of the community, respectively, which are assumed to be competing. The individual interest obtains in the guaranteed right; the community interest obtains in the limitation that is being challenged. Fourth, the conclusion that a right has been infringed is relatively easy to secure, given that this conclusion serves only to trigger a proportionality analysis. As a result, almost all interests and values can be subsumed within one or more rights. Fifth, the optimization of rights entails their prima facie nature: rights are subject to a proportionality analysis and are therefore not absolute. Sixth, the limitation clause analysis proceeds according to the principle of proportionality which balances competing interests. Seventh, the principle of proportionality consists of evaluating the relationship between the end pursued by the community interest 163

Aleinikoff ‘Constitutional Law in the Age of Balancing’ 981.

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and the means designed to pursue it (suitability), the availability of alternative, less infringing means to pursue the community interest (necessity), and the proportionality between the benefits and harms occasioned by the pursuit of the community interest (proportionality in the strict sense or the law of balancing). Eighth, qualifying a public interest objective as valid under the principle of proportionality is relatively easy to secure. As a result, most disputes are resolved by balancing the right against the public interest. Given the current state of rights-reasoning throughout Europe, the Commonwealth, and Israel, it is perhaps no exaggeration to suggest that we have entered what has aptly been referred to as the ‘age of balancing’.164 Having reviewed some of the theoretical underpinnings of this new age, we shall now undertake a critique of the principle of proportionality and the conception of rights that is promoted by the received approach. For despite its status as the received approach, the limitation of rights would benefit from being re-imagined. 164

Aleinikoff ‘Constitutional Law in the Age of Balancing’.

3 Challenging the age of balancing

Introduction The ‘image of balance’, Carl Schmitt tells us, ‘can be found in every aspect of intellectual life’: ‘a balance of trade in international economics, the European balance of power in foreign politics, the cosmic [balance] of attraction and repulsion, the balance of the passions in the works of Malebranche and Shaftesbury, even a balanced diet is recommended’.1 Today, without doubt, the image of balance permeates yet another aspect of intellectual life: rights and their limitation. The current stage of the history of thought in relation to constitutional rights’ scholarship and jurisprudence is engulfed by the discourse of balancing and proportionality. To claim that the law of constitutional rights has entered the age of balancing2 – that it embraces the discourse of balancing – is no exaggeration. Indeed, rights-reasoning is now firmly settled in this age: Canadian scholar David Beatty maintains that proportionality is an ‘essential, unavoidable part of every constitutional text’ and ‘a universal criterion of constitutionality’;3 German scholar Robert Alexy, for his part, maintains that balancing is unavoidable because ‘there is no other rational way in which the reason for the limitation can be put in relation to the constitutional right’.4 Though not always versed in the language of constitutional rights’ scholarship or jurisprudence, even parliamentarians call for balanced policies with regards to constitutional rights.5

1 2 3

4 5

Schmitt The Crisis of Parliamentary Democracy 40. T. A. Aleinikoff ‘Constitutional Law in the Age of Balancing’ 972. Beatty The Ultimate Rule of Law 162. See also 170: ‘Its supremacy, as part of every constitution, means there are no exceptions and no competing principles that can limit its reach.’ Alexy A Theory of Constitutional Rights 74. For a comment on the use of balancing discourse by British politicians, see R. Dworkin ‘It is absurd to calculate human rights according to a cost-benefit analysis’ Guardian (London 24 May 2006). See also R. Dworkin Is Democracy Possible Here? 27.

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Despite its commanding consensus, the received approach to the limitation of rights discloses a failure to achieve a proper understanding of rights and their limitation. It endorses an overzealous definition of rights, which results in rights-claims to everything thereby prompting almost all legislation (and State action more generally) to conflict with some right. In consequence, there are frequent, and indeed expected and unavoidable conclusions that rights have been infringed. Yet, countless rights-infringements are, as a matter of course, justified, with the result that it is now a governing assumption of the received approach that rights are not absolute and that they are generally opposed to or in competition with the public interest. The definition of a right is determined on the basis of the individual claimant’s interest alone and does not take into account other rights or considerations not part of the right’s purpose; these considerations are all relegated to the limitation clause analysis. It is thus that the conclusion that a right has been infringed triggers an analysis into whether the infringement is valid under a limitation analysis. That analysis – considered to be primary if not exclusively a judicial undertaking – draws on a ‘balancing of interests’ and a requirement of ‘proportionality’ between the right and the limitation, which is informed by evidence and (albeit only ostensibly) political morality. Rights’ scholarship and jurisprudence do not, for the most part, fundamentally challenge the received approach: few question the assumptions on which it is based or whether it should be rejected in favour of an altogether alternative approach. As a consequence, we have come to see constitutional rights only through the prism of proportionality and balancing and now fail to grasp the possibility that alternative reasonable modes and methods are even available. Now, although the principle of proportionality is more or less unanimously endorsed, important disagreements result when it is applied to a given limitation. Even with this fruitful basis for investigating its structural assumptions and philosophical commitments, jurisprudence and scholarship accept the soundness of proportionality and balancing, devoting themselves to correcting judicial decisions in order to reconcile better the theory and practice of the process of limitation as conceived by the balancing of ‘competing interests and values’. Despite the pervasiveness of balancing and proportionality in constitutional reasoning, it is not clear that recourse to these ideas is at all helpful in resolving the difficult questions involved in struggling with rights-claims. The discourse of balancing and proportionality camouflages much of the

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scholar’s and the court’s thinking underlying rights. Although some argue that proportionality-reasoning ‘makes it possible to compare and evaluate interests and ideas, values and facts’, ‘reason and faith’, even ‘things as dissimilar as length and weight’,6 there is good reason to be highly sceptical. Calling it ‘doctrinally destructive nihilism’, a leading member of the judiciary has charged that balancing is no more than ‘a convenient umbrella under which a majority that cannot agree on a genuine rationale can conceal its differences’.7 Indeed, the way in which the principle of proportionality generates particular conclusions is difficult to discern: concluding whether legislation ‘strikes the right balance’ or is ‘proportionate’ in relation to constitutional rights is, in many instances, asserted rather than demonstrated.8 This and the following chapters aim to demonstrate that the received approach need not govern the difficult questions surrounding the limitation of rights. My criticisms of the received approach here formulated are not directed to the European Court of Human Rights, the German Federal Constitutional Court, the Supreme Court of Canada, Alexy or Beatty, or any other court or scholar in their own right; the received approach to the limitation of rights is my focus. Yet, despite disagreeing with Alexy on several points, I endorse without qualification his evaluation that the ‘phenomenon of balancing in constitutional law leads to so many problems that [one] cannot even provide a list of them here’.9 I have chosen to direct my challenge to two problems: the incommensurability challenge and the deconstitutionalization of rights.

A The incommensurability challenge The governing ideas of balancing and proportionality take different forms under the received approach to the limitation of rights. At times, the appeal is to placing ‘interests on a set of scales’ and evaluating ‘the way the scales tip’.10 Here, one seeks to determine whether the ‘interests’ and ‘values’ supporting the limitation outweigh the right. At other times, the appeal is to ‘“striking a balance” between or among competing 6 7 8

9 10

Beatty Ultimate Rule of Law 169. New Jersey v. TLO 469 US 325, 369–70 (1985) (Brennan J). See Aleinikoff ‘Constitutional Law in the Age of Balancing’ 975; S. Greer ‘“Balancing” and the European Court of Human Rights’ 412. Alexy ‘Balancing, constitutional review, and representation’ 573. Aleinikoff ‘Constitutional Law in the Age of Balancing’ 946.

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interests’ and the ‘image is one of balanced scales’.11 Here, ‘[o]ne interest does not override another; each survives and is given its due’.12 Both images of balancing and proportionality find favour with the received approach: both view the question of the permissibility of a right’s limitation as debated on the ‘battleground of competing interests’.13 Indeed, this mode of reasoning brings with it a vocabulary all its own, including ‘interest’, ‘value’, ‘cost’, ‘benefit’, ‘weight’, ‘sufficient’ and ‘adequate’. The concepts of ‘good’ (and ‘bad’), ‘right’ (and ‘wrong’), ‘correct’ (and ‘incorrect’) are absent, as is the conceptual clarity associated with this vocabulary. Though one may speak of a correct (or good or right) result when applying the principle of proportionality, this judgment evaluates correctness (or goodness or rightness) in a technical sense: has the principle of proportionality been correctly applied? The structure of proportionality analysis itself does not purport (at least explicitly) to struggle with the moral correctness, goodness or rightness of a claim but only with its technical weight, cost or benefit. The principle of proportionality – being formal or empty – itself makes no claim to correctness in any morally significant way.

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The impossibility of technical balancing

Incommensurability is a contested concept.14 Among its various instantiations is the idea (or rather: the absence) of a ‘common measure’. Two options are incommensurable when it is not appropriate to evaluate both options according to a common measure. A more complete account provides: Option A is commensurable with option B if and only if there is a valuation measure of more and less, and some however complex property P that is correlative with choice and rationally antecedent to choice and rationally determinant of choice, such that A and B can be exhaustively compared by the said measure in respect of being more P and less P; where an exhaustive comparison in respect of P-ness is a comparison in respect of everything that matters about either A or B.15 11 12 13 14

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Aleinikoff ‘Constitutional Law in the Age of Balancing’ 946. Aleinikoff ‘Constitutional Law in the Age of Balancing’ 946. Aleinikoff ‘Constitutional Law in the Age of Balancing’ 946. See the different accounts in R. Chang (ed) Incommensurability, Incompatibility, and Practical Reason (Cambridge, Mass: Harvard University Press, 1997). D. Wiggins ‘Incommensurability: Four Proposals’ in R. Chang (ed) Incommensurability, Incompatibility, and Practical Reason (Cambridge, Mass: Harvard University Press, 1997) 53 (footnote omitted, emphasis added). Raz provides the following ‘simple definition of incommensurability’ in The Morality of Freedom (New York: Clarendon Press, 1988) 322 (footnote omitted): ‘A and B are incommensurate if it is neither true that one is better than the other nor true that they are of equal value.’

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To say that it is ‘not appropriate’ to evaluate two options according to a common measure is to say that applying a common measure to one or both options would distort, transform or misrepresent the value, importance or quality of that option. Stated otherwise, the measure would fail to capture adequately everything that matters about the option being considered. The received approach to the limitation of rights assumes the commensuration of competing interests and values. But for the ability to compare and contrast, any appeal to Alexy’s Law of Balancing or proportionality stricto sensu would be a non sequitur. Yet, under the received approach, judges and scholars rarely identify a common criterion for evaluating the weight of an individual interest and the weight of the conflicting public interest. Perhaps this is explained by the fact that the relevant task is said to be optimization, not maximization. In other words, one is not directed to identify a value that ought to be maximized and to give effect to the interests in a manner that maximizes that value. Rather, one is directed to optimize both a constitutional right and a competing principle, each on their own terms. But according to what standards is one to measure the optimization of a constitutional right and a competing principle? And does the identification of these standards run afoul of the incommensurability thesis? Without examining the reasoning of the Supreme Court of Canada, let us take the question explored in Syndicat Northcrest v. Amselem (2004)16 where members of the Jewish faith made a religious claim for the setting up of a ‘succah’17 on the balcony of their co-owned property for nine days a year. The property contract regulating their use of the co-owned property prohibited any object on the balconies that would compromise the aesthetic harmony of the co-owned property. This example illustrates the challenge posed by incommensurability for the received approach. Given the expansive definition of religious freedom provided by the Supreme Court of Canada – ‘the freedom to undertake practices and 16

17

Syndicat Northcrest v. Amselem [2004] 2 SCR 551 (Supreme Court of Canada). Although the case is between private parties, I will proceed on the working assumption that the condominium’s by-laws were adopted by the legislature. The following definition is provided in the judgment: ‘A succah is a small enclosed temporary hut or booth, traditionally made of wood or other materials such as fastened canvas, and open to the heavens, in which, it has been acknowledged, Jews are commanded to “dwell” temporarily during the festival of Succot, which commences annually with nightfall on the fifteenth day of the Jewish month of Tishrei’: Syndicat Northcrest v. Amselem [5].

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harbour beliefs, having a nexus with religion, in which an individual demonstrates he or she sincerely believes or is sincerely undertaking’18 – the setting up of a succah for the pursuit of a religious belief clearly falls within the scope of the constitutional guarantee. Let us assume for the purposes of this exercise that the setting up of the succah is a nonobligatory religious precept of the Jewish faith. As a consequence, the claimants are not asked to forgo core beliefs, although they are asked to compromise their relationship with their faith. The interference with the religious precept is, let us assume, ‘moderate’. The competing principle pursued by the administrators of the co-owned property is aesthetic harmony. Let us assume that, if the claimants proceed to set up their succahs, the intensity of interference with this principle is ‘light’, given the short period of time of the religious celebration (nine days) and the small number of erected succahs (a few claimants). Would it follow that the ‘moderate’ interference with freedom of religion ‘outweighs’ the ‘light’ interference with aesthetic harmony? Can one conclude that the law of balancing requires the claimants to be favoured? The received approach would suggest so. Yet, in both instances, evaluating whether the interference is light, moderate or serious is undertaken by comparing more or less serious interferences with the same ‘interest’ or ‘value’. In other words, because the religious precept in play is not obligatory and because it is nevertheless important to one’s faith, the interference is moderate; in turn, because the duration of the interference with the aesthetic uniformity of the building is only temporary and only few claimants are involved, the interference is light. The measurement of the interference in both cases is taken only from the perspective of the principle being evaluated. As a result, even if the abstract ‘values’, ‘interests’ or ‘principles’ of aesthetics and religious freedom were the same (a proposition I seek neither to affirm nor deny), it would not follow that a light interference with one is equivalent to a light interference with the other such that one could conclude that a moderate interference with one is worse than a light interference with the other. Given that the principle of proportionality does not seek to maximize some value, but rather to optimize each competing principle, no common measure is appealed to and, thus, no 18

Syndicat Northcrest v. Amselem [46]. The definition continues: ‘… in order to connect with the divine or as a function of his or her spiritual faith, irrespective of whether a particular practice or belief is required by official religious dogma or is in conformity with the position of religious officials.’

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comparison of the intensity of interference of one principle with another is possible. Unless the received approach assumes the ‘abstract weight’ of the competing interests to be ‘equal’, optimization cannot avoid the difficulties with maximization. The result is ‘more like judging whether a particular line is longer than a particular rock is heavy’. 19 Proponents of the received approach attempt to answer this objection by appealing to various sources. For example, Alexy attempts to avoid identifying a single measure that would fail to capture everything that matters about a constitutional right or competing principle by appealing to ‘the constitutional point of view’. He claims that the importance of constitutional rights and competing principles can be evaluated in relation to the constitution, which provides ‘a common point of view’ and ‘indirectly leads to their comparability’.20 He maintains that the triadic scale (light, moderate, serious) he develops for interference with a principle provides an answer to the claim that constitutional rights and competing principles are incommensurable. Alexy accepts that this will not replace disagreement with respect to the outcome of balancing; nevertheless, he argues that disagreement will be about what is correct according to the constitutional point of view. The triadic scale is an important component of the Law of Balancing for Alexy. While he concedes that three grades are not necessary for balancing, which could proceed according to two grades or any greater number subject to an upper limit,21 Alexy is aware that the exercise of balancing increases in complexity the greater the number of grades. For example, assuming only one grade, the result of balancing would always be a stalemate. In turn, ‘refinements of scale admittedly have limits’ before distinctions become ‘incomprehensible’.22 Even with the triadic model, we are told that in some cases it will seem impossible to ‘distinguish light and serious’.23 These difficulties will only multiply, Alexy warns, if a triadic model is replaced with a ‘nine-stage double-triadic model’, where distinctions exceed ‘our power of understanding’.24 Because classifications must be understandable if they are to be justified,25 the number of ‘intensities’ should be circumscribed. Perhaps because he adopts the triadic scale developed by the Federal Constitutional Court, 19 20 21 22 23 24 25

Bendix Autolite Corp v. Midwesco Enterprises Inc 486 US 888, 897 (1988) (Scalia J). Alexy ‘On Balancing and Subsumption’ 442. Alexy ‘On Balancing and Subsumption’ 440. Alexy Theory of Constitutional Rights 412–13. Alexy ‘On Balancing and Subsumption’ 443. Alexy Theory of Constitutional Rights 413; Alexy ‘On Balancing and Subsumption’ 445. Alexy ‘On Balancing and Subsumption’ 445.

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Alexy provides no normative argument in favour of his choice of scale. Rather, he opposes three grades to nine grades in order to conclude that three is simpler to apply than nine. But even if nine stages is problematic, Alexy does not provide an argument in favour of three rather than four or five stages. Indeed, Alexy’s choice of the triadic scale does not prevent him from describing, elsewhere in his work, some interferences with rights as ‘not merely serious, [but] very serious or … extraordinarily serious’.26 Despite developing a scale, Alexy does not illustrate how quantifying interferences with competing principles results in their commensuration. Alexy does not discuss at any length how to incorporate the abstract weight of principles into his Law of Balancing, given that he assumes, for his discussion, that the abstract weight of principles is equal.27 Without a normative argument for measuring the abstract weight of principles and for their comparison, the model developed by Alexy provides little assistance if the abstract weights of principles are not equal. We are told only that abstract weights ought to be factored with concrete weights. While this directive may, from a structural standpoint, be subject to no objection, it provides little assistance to guide practical reasoning. Let us take two examples selected by Alexy which he claims demonstrate that rational and commensurable judgments about intensity of interference and degrees of importance are possible according to the principle of proportionality. The first example takes the German Federal Constitutional Court’s decision on the constitutionality of the legislative directive to position health warnings on tobacco products.28 According to Alexy’s reading of the judgment, given that the State did not pursue ‘a total ban on all tobacco products’, the interference with ‘freedom of profession’ is minor.29 As for the importance of satisfying the competing principle – decreasing the ‘health risks resulting from smoking’ – it is very important given that the health risks are ‘high’. This case, Alexy reports, ‘can well be described … as “obvious”’ according to the principle of proportionality: a minor interference with freedom of profession is proportional to the very important legislative objective of decreasing the health risks resulting from smoking.30 26 27 28 29 30

Alexy Theory of Constitutional Rights 404 (emphasis added). Alexy Theory of Constitutional Rights 408 n 64. BVerfGE 95, 173 reviewed in Alexy Theory of Constitutional Rights 402, 404–5. Alexy Theory of Constitutional Rights 402. Alexy Theory of Constitutional Rights 402.

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Yet, despite Alexy’s assurances, the question of the constitutionality of tobacco product regulation is not altogether ‘obvious’. Alexy’s review of the case brushes aside a number of important considerations.31 A fuller consideration would engage with some of the following questions: Is the health warning attributed to the State or to the tobacco advertisers? Is the cost for the health warning borne by the tobacco advertisers, the State or the consumer? Does the size of the health warning grossly diminish the advertising space on a tobacco product? These few technical questions aim to question just how ‘obvious’ one should consider the conclusion that the interference with freedom of profession is ‘minor’ only because a total ban is not pursued. Another line of (non-technical) questions would challenge the political philosophy underlying the analysis. For example, would a proponent of minimalist economic regulation conclude that the State imposition of health warnings is only a minor interference with tobacco producers’ freedom of profession? Alexy’s second example concerns ‘the classic conflict between freedom of expression and personality rights’.32 The claimant, ‘a paraplegic reserve officer who had successfully carried out his call-up to a military exercise’, was described by a satirical magazine as a ‘born Murderer’ and, in a later edition, as a ‘cripple’. A lower court awarded him a considerable sum in damages. The Constitutional Court concluded that the award of damages constituted a ‘serious interference’ with freedom of expression given that the award of ‘damages could reduce the future willingness of those affected to produce their magazine as they had hitherto done’.33 The competing principle – the officer’s personality right – was only interfered with in a ‘moderate, perhaps even only … light’ manner in the case of being called a ‘born Murderer’, given that ‘several persons had been described [in the magazine] as having a surname at birth in a “recognisably humorous” way, from “puns to silliness”’.34 As a result, the award of damages was not sanctioned by the principle of proportionality in the case of the harm arising out of being called a ‘born Murderer’. As for being called a ‘cripple’, the interference with the officer’s personality right was serious. According to Alexy, this classification is justified ‘by the fact that describing a severely disabled person as a “cripple” is 31

32 33 34

For a review of some of these considerations, see G. Huscroft ‘Is the defeat of health warnings a victory for human rights? The Attorney-General and pre-legislative scrutiny for consistency with the New Zealand Bill of Rights’ (2003) 14 Public Law Review 109. BVerfGE 86, 1 reviewed in Alexy Theory of Constitutional Rights 403–5. Alexy Theory of Constitutional Rights 403. Alexy Theory of Constitutional Rights 403.

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generally taken these days to be “humiliating” and to express a “lack of respect”’.35 As a result, the award of damages was not disproportional given that the interferences with freedom of expression and with the personality right were both serious. Alexy does not identify his second example as ‘obvious’, and for good reason. It is not clear why a ‘humiliating’ name or one expressing a ‘lack of respect’ qualifies an interference with one’s personality right as ‘serious’ rather than ‘moderate’ or ‘light’. Nor is it clear that the relevant evaluative criterion should be what something is ‘generally taken these days to be’. In addition, Alexy does not expound the political philosophy underlying the evaluation of interference, though he does acknowledge that ‘the judgment that the description “cripple” is a serious violation of personality makes assumptions about what it means to be a person and have dignity’.36 What, then, is commensurability and why does it not extend to the received approach to the limitation of rights? For full commensurability to be possible – for the costs and benefits of alternative options to be fully measured – it must be the case that ‘(1) goals are well-defined, (2) costs can be compared by references to some definite unit of value (for example, money), (3) benefits too can be quantified in a way that renders them commensurable with one another, and (4) differences among the means, other than their measurable costs, measurable benefits, and other aspects of their respective efficiency as means, are not counted as significant’.37 These conditions apply especially in the technical domain, not in moral–political reasoning.38 If they did, ‘morally significant choice would be unnecessary and … impossible [given that] one option could be shown to be the best on a single scale which, as all aggregative reasoning does, ranks options in a single, transitive order’.39 When ‘technical reasons can identify one option as uniquely correct’ – that is, when they demonstrate that ‘it offers all that the other options offer and some more’ – it is ‘unqualifiedly better’.40 The alternatives then ‘lack rational appeal’; they cease to be options.41 35 36 37

38

39 40 41

Alexy Theory of Constitutional Rights 404 (emphasis added). Alexy Theory of Constitutional Rights 405. J. Finnis ‘Commensuration and Public Reason’ in R. Chang (ed) Incommensurability, Incompatibility, and Practical Reason (Cambridge, Mass: Harvard University Press, 1997) 219. See also J. Finnis ‘Natural Law and Legal Reasoning’ in R. P. George (ed) Natural Law Theory: Contemporary Essays (New York: Clarendon Press, 1992) 146. Finnis ‘Commensuration and Public Reason’ 219; Finnis ‘Natural Law and Legal Reasoning’ 146. Finnis ‘Natural Law and Legal Reasoning’ 146. Finnis ‘Natural Law and Legal Reasoning’ 147. Finnis ‘Natural Law and Legal Reasoning’ 147; Finnis ‘Commensuration and Public Reason’ 223–4.

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There is no choice and thus no place for moral reasoning. Technical reasoning has exhausted the field. But the moral and political choices that must be made in determining the limitation of rights reveal a surplus of valuations, not a single metric. The principle of proportionality cannot be ‘correlative with choice and rationally antecedent to choice and rationally determinant of choice’.42 If that were so, one would have to explain the widespread disagreement accompanying the application of proportionality analysis as the result of ignorance or bad faith. But if technical reasoning does not exhaust the field, if it does not remove choice by denying any rational appeal for the alternatives confronting the decision-maker, then the outcome is rationally determined and reasonable disagreement may obtain. In these circumstances – the normal circumstances confronting the limitation of rights – no factor or reason ‘but the choosing itself settles which alternative is chosen’ thus revealing the ‘real creativity in free choice’.43 In the absence of a measure to commensurate the intensities of interference of one principle with those of another, the instruction given by the principle of proportionality to balance or to weigh ‘can legitimately mean no more than “Bear in mind, conscientiously, all the relevant factors, and choose”.’44 Without an identified common measure, the principle of proportionality cannot direct reason to an answer. It can merely assist reason in identifying the incommensurable choice that one must make.

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Balancing and practical reason

One might object to this incommensurability challenge and maintain that choices must be commensurable: otherwise, no rational decision is possible. At least two answers to this objection are available. First, it does not follow that because two principles, interests or values are incommensurable that we cannot, or indeed do not – as the colloquial expression suggests – ‘weigh’ or ‘balance’ reasons in coming to a conclusion.45 Though the language of balancing reasons in common parlance is similar to the language of balancing interests according to the principle of 42 43 44 45

Wiggins ‘Incommensurability: Four Proposals’ 53. Finnis ‘Commensuration and Public Reason’ 220. Finnis ‘Natural Law and Legal Reasoning’ 145. See J. Raz Practical Reason and Norms (new edn, New York: Oxford University Press, 2002).

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proportionality, it is erroneous to equate the two. The shorthand references to balancing and weighing and engaging in trade-offs for describing practical reasoning does not make the same claim to balancing and weighing as does the received approach.46 To weigh or to balance reasons may involve an examination of the advantages and disadvantages of available alternatives, but this is not to devise a common scale of evaluation, to assign a value, and to weigh in the technical sense. Rather, in holding the relevant reasons in one’s mind, one proceeds according to the reason that is, in one’s judgment, the most compelling and – in colloquial (not technical) terms – one identifies that reason as the ‘weightier’ one.47 If two options are incommensurable, reason cannot adjudge their relative value. But this is not an imperfection of the reasoning process. Indeed, it is a ‘mere technocratic illusion’ – no doubt encouraged by the received approach and its reliance on balancing and the principle of proportionality – ‘to suppose that a choice not guided by cost-benefit computations must be arbitrary’.48 One should not assume that ‘there is a true value behind the ranking of options, and that the ranking is a kind of technique for measuring this value’; rather, where incommensurability obtains, there ‘is nothing further behind it’.49 Yet, this does not make one impotent when confronted by two (or more) incommensurable options. Often, there are good reasons for two (or more) options but not for choosing between them. Any one alternative can be supported by good reason even if the choice between alternatives is not determined by reason. Following Raz, one should say that ‘[r]ational action is action for (what the agent takes to be) an undefeated reason. It is not necessarily action for a reason which defeats all others’.50 In this sense, although the 46

47

48

49

50

See S. Lukes ‘Comparing the Incomparable: Trade-offs and Sacrifices’ in R. Chang (ed) Incommensurability, Incompatibility, and Practical Reason (Cambridge, Mass: Harvard University Press, 1997) 187–8 for a comparison of the technical vocabulary of trade-off versus the religious vocabulary of sacrifice. The Oxford English Dictionary (2nd edn 1989 online) provides, among the many definitions of ‘balance v.’: ‘to ponder’ and ‘to deliberate’. See also L. B. Frantz ‘The First Amendment in the Balance’ (1962) 71 Yale Law Journal 1424, 1434–5. J. Finnis Fundamentals of Ethics (Oxford: Clarendon Press, 1983) 91. See also Lukes ‘Comparing the Incomparable: Trade-offs and Sacrifices’ 186–7. Raz Morality of Freedom 327. See also C. R. Sunstein ‘Incommensurability and Kinds of Valuation: Some Applications in Law’ in R. Chang (ed) Incommensurability, Incompatibility, and Practical Reason (Cambridge, Mass: Harvard University Press, 1997) 241. Raz Morality of Freedom 339.

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choice between alternatives or values or interests or principles is sometimes said to be ‘irrational’ in the sense of arbitrary, it is rather more accurate to say that it is underdetermined by reason: reason provides the parameters for making the decision but leaves to the author of the decision a choice. Reason supports both, makes them both rationally appealing but does not support one as better than the other; it ‘does no more (and no less) than hold the ring, disqualifying countless “solutions” as contrary to reason and wrong, but identifying none as uniquely right’.51 One is left to arbitrate – that is, to decide. Now, the importance of choice is not undermined by what Finnis aptly identifies as ‘a feature of the experience of choice’; namely, that ‘[a]fter one has chosen, the factors favouring the chosen option will usually seem to outweigh, overbalance, those favouring the rejected alternative options’.52 Because the choosing settles which incommensurable alternative is chosen – because of the creativity inherent in choosing – the act of choosing is partly ‘self-constitutive’.53 As a result, one ‘more or less transforms oneself by making the choice, and by carrying it out, and by following it up with other free choices in line with it’, with the consequence that once made, the constituted self may approach the same alternative options and not see the choice.54 But, merely because, with hindsight, one reasons ‘backwards’, so to speak, and convinces oneself that the choice made was rationally determined, it does not follow that at the moment of choosing reason was potent to select between the alternatives. Nevertheless, one may provide a good explanation for this feature of the experience of choice: once made, the choice between the alternative options establishes an (albeit contingent) answer for the chooser. When confronted with a similar ‘choice’ again, it becomes obvious to the chooser what alternative should be favoured now that an answer has previously been established. 55 A second (related) answer to the claim that the incommensurability thesis prevents rational choices from being made is to withdraw the debate altogether from a proportionality framework. The incommensurability challenge here formulated identifies as its target the widespread assumption that balancing and proportionality proceed mathematically 51 52 53 54 55

Finnis ‘Commensuration and Public Reason’ 232. Finnis ‘Natural Law and Legal Reasoning’ 145. Finnis ‘Commensuration and Public Reason’ 220. Finnis ‘Commensuration and Public Reason’ 220. This does not deny that the chooser may re-evaluate the previous choice by acting contrary to the commitment undertaken by the previous choice.

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and technically. The challenge, of course, does not question the availability of reason in guiding rights’ reasoning. Many components of the reasoning process allow for (indeed, depend on) commensurability. The following sets are all commensurable: truth and untruth, attention and inattention to evidence, insight and stupidity and oversight, sound and unsound reason.56 Moreover, where legislative scheme S1 has all the benefits of legislative scheme S2but the former interferes less with valid interests, the two schemes are commensurable and reason dictates that legislative scheme S1 be preferred. But reason cannot determine the choice between different schemes where there are multiple criteria for evaluation: for example, where legislative scheme S1, whilst interfering less with valid interests, has some but not all of the benefits of legislative scheme S2. There is no doubt that for some proponents of the received approach to the limitation of rights, the principle of proportionality is conceived of as a technical undertaking. This understanding is impossible; it runs afoul of the incommensurability of competing interests, values and principles. For other proponents, the received approach is not exclusively a technical exercise: the principle of proportionality is empty and formal and must appeal to political morality. For them, the criticism relating to weight and technical measurement and incommensurability is blunted as they appeal to the ‘exercise of general practical reasoning’.57 But as soon as this becomes the role of the received approach, any rights that were thought to be constitutionally guaranteed become deconstitutionalized. Whatever the constitution does, proportionality can undo. Proportionality and balancing effectively translate all rights into reasons that trigger a first-order assessment as to whether the current state of affairs is best overall. Any stipulated rights fail to serve as second-order reasons for acting or not acting. Instead, they collapse into a general right to proportionality evaluations.

B Deconstitutionalizing rights What is the consequence of allowing direct appeals to first-order reasons in evaluating the infringement of a right? Even assuming that the received approach could overcome challenges to its internal logic, 56 57

Finnis ‘Commensuration and Public Reason’ 217. Kumm ‘Political Liberalism and the Structure of Rights’140.

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there are other challenges – external to its internal architecture – which encourage one to reject the received approach to the limitation of rights. Even assuming that engaging in all-things-considered balancing and proportionality analyses were possible in the technical sense, doing so would do violence to the idea of a constitution and the guarantee of rights, attempt to depoliticize rights and mask the moral–political decisions being undertaken in articulating the limitation of rights, and deny any categorical answers to any question, no matter how fundamental. The result would be an undoing of all that the constitution does. Indeed, it is sometimes thought to be a virtue of the received approach that it effectively counsels ‘virtually anything in moderation but nothing in excess’.58

1

Undoing the constitution

If one accepts the argument in Chapter 1 that at least one of the aims of a constitution is to secure the political legitimacy of the State, then the received approach to the limitation of rights does violence to the idea of a constitution. One of the ends of a constitutional right is to demarcate acceptable from unacceptable State action (and inaction), which, in turn, may be necessary to secure the political legitimacy of the State. The identification and articulation of the constitutional right is the expression of a multi-faceted judgment by citizens (and their representatives) about what is required to secure the two principles of political legitimacy. It is a judgment that determines how much to decide at the stage of constitution-making and how much to leave to subsequent decision by the constituted authorities. It is a judgment about how to actualize each principle of political legitimacy in the State’s democratic institutions and guaranteed rights. And it is a judgment about how to attempt to reconcile each principle of political legitimacy in relation to the other. These judgments are guided, but not determined by reason. They are instances of political choice – choice exercised in the face of options maintained and supported by reason. In this way in part, constitutionmakers constitute part of the relationship between the principles of political legitimacy; the constitution creates and establishes a relationship between the principle of democracy and the principle of human rights. The received approach undoes all of this. Each judgment is cast aside and everything is eligible for being re-considered, re-evaluated, re-judged 58

Beatty Ultimate Rule of Law 176.

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anew. The received approach attempts a raw appeal to the principles of political legitimacy that is not mediated through constitutional commitments. In this way, each exercise of balancing and proportionality ‘is asking questions that the framers of a constitution might well ask’ with the result that each conclusion ‘creates a new, ad hoc constitution’, ready to be undone and remade with another similar exercise.59 Under the received approach, a right guaranteed by the constitution serves as little more than an ‘interest’ or ‘value’ or ‘principle’ to be optimized; it provides no strict demarcation against unacceptable State action. With the received approach, so long as the benefit to the interest promoted by legislation outweighs the ‘cost’ to the constitutional right, ‘[a]nything which the Constitution says cannot be done can be done’.60 In this sense, the constitution provides no injunction ‘you shall not pass’; at best, the constitution suggests: ‘pass if you must, but do so proportionally’.61 Given that for Beatty, the principle of proportionality ‘makes the concept of rights almost irrelevant’62 or outright ‘disappear’,63 that for Alexy rights are merely ‘prima facie requirements’,64 and that in jurisprudence the language of rights is inextricably substituted for the language of ‘interests’ or ‘values’, the very enterprise of constitution-making could be simplified by enacting a single proposition: ‘The legislature shall act in accordance with the principle of proportionality’. After all, for the received approach, ‘proportionality is what basic rights of liberty, equality and fraternity actually guarantee’.65 Given that almost all interests qualify for constitutional recognition as a right and that almost all public interests qualify as a permissible limitation, the entire constitutional exercise is essentially delegated to one of balancing. Beatty maintains that ‘proportionality turns the [constitutional] review process into a relatively straightforward exercise of logical or syllogistic reasoning’.66 The major premise provides that all law must be proportional if it is to be constitutional. Next, the minor premise is the result of applying the principle of proportionality: a limitation is or is not proportional. The minor premise is where the ‘facts and details of the government’s behaviour are scrutinized and probed’.67 Finally, we are 59

60 61 62 63 64 66

C. A. Reich ‘Mr Justice Black and the Living Constitution’ (1963) 76 Harvard Law Review 673, 742–3. Frantz ‘First Amendment in the Balance’ 1445. See Frantz ‘First Amendment in the Balance’ 1449. Beatty Ultimate Rule of Law 160, see also 175–6. Beatty Ultimate Rule of Law 171. Alexy Theory of Constitutional Rights 57. 65 Beatty Ultimate Rule of Law 170. Beatty Ultimate Rule of Law 169. 67 Beatty Ultimate Rule of Law 169.

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told that the conclusion follows from deductive reasoning.68 One may question – in light of the complexity of the task to be performed under the minor premise – Beatty’s assertion that the reasoning is straightforward, let alone logical or syllogistic. But one matter is nonetheless clear: the text setting out the right, the choice of words articulating whatever scope and content can be discerned, the entire interpretive exercise traditionally associated with legal prescriptions, are largely cast aside. Without a commitment to grappling with the text itself, ‘nothing can follow from this except the conclusion that it was an exercise in futility to write it in the first place’.69 The undoing of the judgments of the constitution comes with an important moral loss. Conceived only by reference to the weight of the interests they promote, rights lose any sense of certainty. In the case of free expression, and likely in the case of many other rights, the ‘attitude toward freedom of speech which encourages uninhibited discussion’ is liable to be lost.70 Even if one were to suppose that the principle of proportionality protects more expression than would a narrow but absolute definition of freedom of expression, the latter approach allows for a different attitude to develop. One may claim freedom of expression and rely on it without concern for the possibility that a court will subsequently conclude that the balance of interests favoured the absence of expression. When a right is defined and any infringements resolutely resisted, we might say that one draws a line – a demarcation, a limitation – between acceptable and unacceptable State action. The line may be ‘wavering and uncertain’ at many points and any number of cases may compel one to conclude that it has been drawn ‘in the wrong place and that it should be moved’; moreover, ‘no matter how satisfactorily the line is drawn, borderline cases can still arise which could arguably be placed on either side’.71 But despite these difficulties, the mere drawing of a line posits some cases on one side, and other cases on the other; there will be ‘cases that are not borderline’.72 In these cases, the answer will be obvious because the right’s definition will direct the answer. The received approach does not allow for even this delimited certainty. At no point can one conclusively, and with conviction, assert: ‘Speak, you have a right to say this or that’. At best, one may offer up the following assessment: ‘Speak, you have an interest in saying this or that which may or may not be evaluated to be favourably balanced against competing 68 69 70 71 72

Beatty Ultimate Rule of Law 169. Frantz ‘First Amendment in the Balance’ 1433 (footnote omitted). Frantz ‘First Amendment in the Balance’ 1443. Frantz ‘First Amendment in the Balance’ 1435. Frantz ‘First Amendment in the Balance’ 1435.

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interests’. There are no assurances. Under the received approach, the scope of any right may never be clear; it may never be fully defined. The appeal is always to first-order reasons, to all-things-considered evaluations, to the ‘totality of the circumstances’ as though there was no prior consideration given to the matter. As a result, ‘a rights-holder does not have very much in virtue of having a right’ under the received approach.73 The right does not confer ‘any kind of priority over countervailing considerations of policy’; it merely ‘serves as a trigger to initiate an assessment of whether the infringement is justified’.74 The right effectively is to a proportionality assessment. That is all it provides. In consequence, whether I have a right to expression both ‘cannot be known until after the event’ and may depend on ‘the unpredictable weight which a court may someday give to “competing interests”’.75 The claim that the received approach undoes the constitution does not depend on the assumption that a constitution’s meaning is readily discernable. Underspecified rights must undergo a process of delimitation. Yet, as will be argued in the following chapter, once a right is delimited one should resist attempts by proponents of the principle of proportionality to transform the right into a principle to be optimized. Once delimited, a constitutional right may be considered to be an exclusionary reason. By contrast, the received approach to the limitation of rights transforms any strict demarcation into a permeable demarcation, resisting unacceptable State action only insofar as it does not satisfy the principle of proportionality. The constitutional right’s guarantee becomes a guarantee against disproportional State action; it loses its claim to being a guarantee against unacceptable State action, irrespective of what the principle of proportionality might otherwise suggest.

2

Depoliticizing rights

The received approach attempts to depoliticize rights by purporting to turn the moral and political evaluations involved in delimiting a right into technical questions of weight and balance. This attempt is revealed by the technocratic vocabulary employed by the received approach. Yet, as some proponents of the principle of proportionality acknowledge, any 73 74 75

Kumm ‘Political Liberalism and the Structure of Rights’ 139. Kumm ‘Political Liberalism and the Structure of Rights’ 139. Frantz ‘First Amendment in the Balance’ 1443. See also J. H. Ely ‘Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis’ (1975) 88 Harvard Law Review 1482, 1500–1.

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attempt to evade the political and moral questions inherent in the process of rights-reasoning is futile. Even within a balancing or proportionality framework, identifying the interests that are to count and determining their ‘weight’ cannot proceed apolitically and amorally. Arguments about constitutional rights cannot be transformed into management and mathematical measurement. The attempts to depoliticize rights occur not only at the level of the commensuration and the purported removal of choice, but at another level as well: the identification and weighting of the relevant interests. The assumption that the identification of interests can be divorced from political judgment either results from including all interests asserted by anyone to be relevant or brushes over the prior question as to who is identifying the ‘relevant’ interests and according to what standard or criterion. The first alternative, which – it must be recognized – is itself a political choice, finds favour with many. Although Alexy maintains, somewhat equivocally, that a principle may be invalid, his definition of an invalid principle is of a principle deserving little weight.76 As a result, all principles, one gathers, qualify. Beatty, for his part, argues that each point of view carries equal moral weight.77 The decision to include all interests makes no room for the assertion that some interests are ill-founded or worthless or vicious or irrelevant. It does not allow one to deny that every interest counts, every claim should be valued, every argument weighed; it makes no room for the assertion ‘your interest does not count’, ‘your claim is valueless’, ‘your argument is weightless’. It denies that a justified political decision can assert certain interests to be irrelevant or deserving of no weight. Indeed, why should the view-points of those who proceed uncritically or out of an interest for power and reward be valued equally with those who are reflective and concerned with truth, reasonableness and virtue? Should not these former perspectives be rejected ‘for the sake of discourse (not demagoguery), truth (not mendacious or myth-ridden propaganda), friendship (not self-seeking flattery), and the real interests of all (including those wrongly interested in adhering to and acting upon their immoral “perspectives”)’?78 The second alternative is also problematic as it fails to appreciate that the identification and formulation of the ‘relevant’ interests can 76 78

Alexy Theory of Constitutional Rights 61–2. 77 Beatty Ultimate Rule of Law 172. J. Finnis ‘Natural Law and the Ethics of Discourse’ (1999) 12 Ratio Juris 354, 357 (emphasis in original, footnote omitted).

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determine the outcome of the balancing or proportionality exercise. The many choices involved in making determinations of interest and weight highlight the importance of identifying who determines the interests subject to a proportionality analysis and on what grounds those decisions are made. For example, if the court identifies the relevant interests, why should the interests of the parties before the court be privileged over the interests of others equally affected by the outcome of the decision? The received approach does seem to privilege ‘the perspective of those who are actually party to a dispute’ and makes ‘no serious effort to place the interests of non-parties on the scale’.79 But on what basis is the principle of proportionality concerned exclusively with the parties before the court? A plausible, but unsatisfactory answer may lie with a preference to simplify matters and assume only two ‘interests’: the individual interest and the public interest, each represented by a party before the court. The lessons of polycentrality are somehow cast aside in favour of simplifying the balancing exercise, revealing that a true commitment to balancing ‘would seem to demand the kind of investigation of the world that courts are unable or unwilling to undertake’.80 In addition to the difficulties with this gratuitous simplification, why should someone with legal training (like a judge) – as opposed to someone with an uninhibited81 moral–political orientation – perform the proportionality analysis? In response to concerns of this kind, there are attempts to externalize the evaluation of weight. In this way, the role of the judge is that of information-gatherer, not decision-maker. No responsibility lies with the judicial office, for ‘balancing decisions are neither opinions nor arguments that can engage us; they are demonstrations’.82 The appeals to external descriptions proceed by looking to ‘the constitution’ (per Alexy), to ‘facts’ (per Beatty), or to what ‘history, tradition, and current society’83 attribute to the interests. Alexy looks to the constitution as a guide for identifying the relevant interests and their weight. Yet, it is far from clear how open-ended references to ‘life, liberty and security of the person’, ‘the right to 79

80 81

82 83

Beatty Ultimate Rule of Law 184 (footnote omitted); Aleinikoff ‘Constitutional Law in the Age of Balancing’ 978. Aleinikoff ‘Constitutional Law in the Age of Balancing’ 978. For the view that legal–judicial reasoning is properly constrained by the sources of law, see J. Waldron ‘Do Judges Reason Morally?’ in G. Huscroft (ed) Expounding the Constitution: Essays in Constitutional Theory (New York: Cambridge University Press, 2008). Aleinikoff ‘Constitutional Law in the Age of Balancing’ 993. See Aleinikoff ‘Constitutional Law in the Age of Balancing’ 962–3.

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be presumed innocent’, and ‘freedom of association’ disclose a single political philosophy (or, assuming a single political philosophy, a single reading of that philosophy). This does not deny that an interpreter could provide a coherent account of the political philosophy of a given constitution. The point here is that an interpreter must approach the political nature of this task with philosophy in hand; constitutional rights will not speak for themselves. Balancing cannot be a descriptive exercise; if it is at all possible, it is inescapably a normative undertaking. Here, Alexy would appear to agree.84 He explains that ‘a balancing of principles is rational when the preferential statement to which it leads can be rationally justified’.85 Proceeding by way of justification acknowledges that the balancing process is not self-evident and that it involves, at a minimum, the making of judgments and choices informed by commitments to political morality, which should be supported by good reasons. In other words, proceeding by way of justification embraces a normative rather than technical vocabulary that acknowledges the necessity of providing good and sufficient reasons for the identification of ‘interests’ and their ‘weight’. But in so admitting the need to rely on reasons to inform the constitution’s meaning, Alexy’s claim to externalize the evaluating of weight is undermined. For Beatty, facts are the external anchor. By emphasizing empirical evidence and the parties’ own understanding of the significance of the law for them, the principle of proportionality is factual; it is therefore objective in the sense that it does not (according to Beatty) require evaluation: the facts speak for themselves.86 Beatty is adamant that this process is possible: if a judge lets the facts and the parties speak for themselves, the judge will ‘know just by looking, just by sight’ which answer is correct.87 The pragmatic focus on facts purports to transform the evaluations of value in moral philosophy into questions of fact.88 84 85

86

87

88

Alexy Theory of Constitutional Rights 109, 405. Alexy Theory of Constitutional Rights 100–1 (emphasis added, footnote omitted). Unfortunately, Alexy says little more about his understanding of justification. He directs the reader to no other part of A Theory of Constitutional Rights or to any of his other writings. Beatty Ultimate Rule of Law 92, 172, 184. It is not objective in the sense that there is one external standard for assessing the importance of the empirical evidence. Beatty Ultimate Rule of Law 73. Beatty is not wrong to claim that (some) judges proceed on this assumption: eg Wilson v. First County Trust Ltd (No 2) [2004] 1 AC 816 [63] (Lord Nicholls): ‘When a court makes this value judgment the facts will often speak for themselves.’ Beatty Ultimate Rule of Law 170.

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Beatty maintains that judges applying the principle of proportionality can avoid committing themselves to a conception of political morality.89 Beatty claims that rights and interests are turned into matters of fact rather than matters of interpretation or moral principle,90 though he does not defend his claim that mere facts somehow yield normative conclusions. His emphasis on facts avoids (he thinks) the difficultly with balancing matters that are ‘impossible to compare’,91 though he does not explain how facts can be compared. Beatty assumes that a judge should evaluate the parties’ own statements about the importance of the effects of a law for them.92 Yet, Beatty does not always stay true to this externalization commitment. In some cases, we are told that the parties’ own assessment of how a law affects them should be substituted for the judge’s own assessment. First, Beatty maintains that a judge should make an evaluation of the significance of a law (in lieu of the parties’ evaluation) when the parties are ‘too caught up in a case and so liable to exaggerate their claims’93 or when the parties’ evaluation of the effects of a law is influenced by their prejudice with respect to a certain group or issue.94 Beatty does not explain how judges can know whether the parties are exaggerating their claim or are resting their claim on prejudice without, in the first instance, breaching his condition that judges refrain from evaluating for themselves the importance of the effect of law on each party. Second, Beatty at times contends that ‘proportionality requires judges to assess the legitimacy of whatever law or regulation or ruling is before them from the perspective of those who reap its greatest benefits and those who stand to lose the most’.95 Unless Beatty assumes that the parties before a judge will always be those most affected by the law, a judge cannot focus the analysis to the parties before the court and evaluate the law from the perspective of those most affected. Moreover, in order to determine who is most affected by the law, it would seem that the judge must breach Beatty’s condition that a judge should refrain from evaluating the importance of the effect of a law. Third, Beatty at times suggests that a judge should evaluate facts from the perspective of the ‘community’. When discussing the question of abortion, Beatty maintains that judges ‘have no authority to second-guess how a 89 91 93

94 95

Beatty Ultimate Rule of Law 159–60. 90 Beatty Ultimate Rule of Law 171. Beatty Ultimate Rule of Law 92. 92 Beatty Ultimate Rule of Law 184. Beatty Ultimate Rule of Law 168. Beatty does not explain when parties to a dispute do not exaggerate their claim. Beatty Ultimate Rule of Law 114–15. Beatty’s example here is same-sex marriage. Beatty Ultimate Rule of Law 159–60 (emphasis added), see also 166.

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community thinks about the deep philosophical and spiritual meanings of life’.96 The judge should respect the value choices of the community and, one surmises, take this as a ‘social fact’ in applying the principle of proportionality. Beatty does not explain how a judge would apply the principle of proportionality in a case where parties before a court differ markedly from the community’s value choices. Moreover, Beatty appears to assume away the possibility that the members of a community are deeply divided on a given question, like abortion. Although Beatty gives the community a role in informing the proportionality analysis when it comes to the abortion debate, he dismisses ‘popular opinion’ and the ‘feelings’ of ‘a majority of people’ when it comes to the same-sex marriage debate.97 Despite emphasizing the importance of facts and parties before a court, Beatty ventures to apply the principle of proportionality in the absence of a factual matrix. For example, he maintains that proportionality requires that private religious schools be funded from the public purse in proportion to the similarity of their curriculum to the public school curriculum.98 It is with evaluations such as these that Beatty equivocates as to the source of the facts for the principle of proportionality: are they ‘social facts’ as determined by the community or are they ‘individual facts’ as determined by the parties to a dispute? More fundamentally, Beatty does not seem to appreciate that facts cannot speak for themselves. Facts carry no normative weight and yield no normative conclusion without a judge (understood here not in the narrow sense of someone holding judicial office) to assign them meaning by appealing to a conceptual framework. The weight to be given to a ‘fact’ is, in law, often a matter of political judgment and not subject to evidentiary proof. Indeed, in reading Beatty, one comes to the conclusion that ‘facts speak to Beatty more clearly than they [do] to [his] readers’.99 Moreover, not all relevant considerations can be ‘proved’; some questions of political 96 98

99

Beatty Ultimate Rule of Law 167. 97 Beatty Ultimate Rule of Law 114–15. Beatty Ultimate Rule of Law 179. See also 168 where a claim divorced from factual circumstances is made with respect to abortion, including the moral claim that a foetus ‘dies’ when it is aborted; ibid 147–8 where the claim (‘all were distributively perverse’) is divorced from the factual circumstances with respect to the propriety of policies respecting public education in India, policies respecting antiretroviral drugs in South Africa, and policies respecting sign-language services for persons with impaired hearing in the field of health services in Canada. Posner ‘Review Article: Constitutional Law From a Pragmatic Perspective’ 299, 302–3; V. C. Jackson ‘Being Proportional About Proportionality’ (2004) 21 Constitutional Commentary 803, 813.

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morality are to be asserted and justified without being evidence-based. Where legislation rests (as it often does) on moral or political commitments, the delimitation of rights proceeds by way of argument and justification, not measurement. In sum, neither facts, nor the constitution, nor history are imbued with fixed, exhaustive meaning or come tagged with a stipulated weight for balancing. Different persons will associate different weights to interests on the basis of their moral–political commitments. To assume a ‘neutral’ answer is to assume a shared world-view or political philosophy such that the contested and contingent political choices involved in assigning value or weight to interests are not acknowledged. Unless one is speaking only with one’s ‘friends’ (that is, with those who share the same worldview or political philosophy), the absence of unanimity in evaluating the weight to be assigned to an interest, or the importance – for the constitution, tradition, history or current society – of a right is immediately apparent. To acknowledge this is not to engage with moral relativism. Each one of us can appreciate the judgments and choices that must be made in evaluating a rights-claim. Contrary to being a technical evaluation, the question of the weight of an interest cannot be answered without substantive evaluations and moral judgments and, thus, without controversy. To maintain blind faith in the received approach and its principle of proportionality as apolitical and amoral is to suffer from what, following Wittgenstein, may be called a selective ‘loss of problems’.100

3

Denying categorical answers

Among the many desiderata of the rule of law, the ability to guide and coordinate human activity according to law is revealed to be an encompassing purpose. The virtues of predictability, publicity, prospectivity, stability and certainty are related to the ends of fairness, consistency and clarity. To fulfil a guidance function, the law must guide not only the members of the community for whom it is enacted, but also those charged with its administration and implementation. They must be impartial in their undertaking, ‘in the sense that they [those called before the law’s administrators] are as nearly as possible to be treated by each judge as they would be treated by every other judge’.101 This requires, so 100

101

G. E. M. Anscombe and G. H. von Wright (eds), L. Wittgenstein Zettel (Oxford: Basil Blackwell, 1967) [456]. Finnis ‘Natural Law and Legal Reasoning’ 150.

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far as possible, that the choices have been undertaken before the dispute finds itself before the office of judge – the resolution of choices must not be those of the judge. For any choice (true choice that is underdetermined by reason) undertaken by a judge cannot be predicted to be the same as that made by another. For this reason, law drives towards ‘the artificial, the techne rationality of laying down and following a set of positive norms identifiable as far as possible simply by their “sources”’.102 The task of the judge, after all, is to perform justice according to law; the task is not akin to autonomous individual moral-reasoning. In large measure, the task of the judge is to discover ‘the results of other people’s moral reasoning’ and to rely on that moral reasoning.103 The received approach to the limitation of rights denies any closing off of prior choices. It denies the artificial, the techne rationality of previously determined norms. It seeks to engage as if for the first time in the merits, unobstructed by previously stipulated determinations. As a result, the received approach denies categorical (in the sense of exclusionary, pre-determinate) answers to rights-claims. Every answer to a claim is contingent on the optimization of the constitutional right. For the received approach, any previously stipulated ‘thunderous “Thou shalt not abridge”’ is distorted ‘into a quavering “Abridge if you must, but try to keep it reasonable”’.104 Nothing is unconditionally obligatory. There can be no categorical assertion, for example, that the State should not torture a person. That may always be the conclusion that one comes to under the received approach to the limitation of rights, but that conclusion is always conditional on the optimization of one’s right against being tortured in the light of the circumstances surrounding the proposed recourse to torture. In fact, one proponent of the principle of proportionality advocates not only that the State should not be prohibited from using torture but also that, according to the principle of proportionality, there may be circumstances where the State should actively make use of torture.105 Under the received approach, any explicit constitutional prohibition of torture is translated from a categorical prohibition to an optimization principle. On Alexy’s account, the principle of proportionality is too formal and makes too few substantive 102 103 104 105

Finnis Natural Law and Legal Reasoning 150. Waldron ‘Do Judges Reason Morally?’ 49 (emphasis in original). Frantz ‘First Amendment in the Balance’ 1449 (footnote omitted). W. Brugger ‘May Government Ever Use Torture? Two Responses from German Law’ (2000) 48 American Journal of Comparative Law 661.

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commitments to resist the possibility that torture will be sanctioned, let alone slavery or the murder of innocents. Indeed, Alexy maintains that ‘the conviction that there must be rights which even in the most extreme circumstances are not outweighed … cannot be maintained as a matter of constitutional law’.106 Not dissimilarly, the Supreme Court of Canada refuses to conclude categorically that the rights to life and security of the person under the Canadian Charter prevent the State from extraditing individuals to a country where they could face the threat of torture. In Suresh v. Canada (2002), the Court would not exclude ‘the possibility that in exceptional circumstances’ it ‘might be justified … as a consequence of the balancing process’ under the Canadian Charter to extradite an individual in these circumstances.107 According to the received approach, the right to torture – like all constitutional rights – has no ‘hard core’.108 It guarantees nothing categorically. Indeed, it is only by rejecting the principle of proportionality altogether following a line of argument similar to that adopted by the European Court of Human Rights in Chahal v. United Kingdom (1996) that a categorical answer is possible. Acknowledging ‘the immense difficulties faced by States in modern times in protecting their communities from terrorist violence’, the European Court (albeit uncharacteristically) resisted appealing to the received approach’s reliance on the principle of proportionality with regards to the right against torture.109 As a result, it was not necessary for the European Court ‘to enter into a consideration of the Government’s untested, but no doubt bona fide, allegations about the … applicant’s terrorist activities and the threat posed by him to national security’.110 Nor was it necessary for the European Court to consider that the deporting State in no way shared any purpose of torturing, and did all it could to lessen the probability of torture following deportation. Recourse to torture was categorically prohibited. End of inquiry. The challenge posed by the received approach to the desiderata of the rule of law is considerable. The reduction of all constitutional rights to evaluations of proportionality and balancing is the substitution of a 106 107 108 109 110

Alexy Theory of Constitutional Rights 196. Suresh v. Canada [2002] 1 SCR 3 [78] (Supreme Court of Canada). Frantz ‘First Amendment in the Balance’ 1440. Chahal v. United Kingdom (1997) 23 EHRR 413 [79]. Chahal v. United Kingdom [82]. For a similar approach to the admissibility of evidence secured by recourse to torture, see A and others v. Secretary of State for the Home Department (No 2) [2006] 2 AC 221 (House of Lords).

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standard for any rule, the transformation of sources of law into premises in practical reasoning, the undoing of all that the constitution purports to do. It is, in short, the very doing that a court would declare contrary to the rule of law should it be done by the legislature or the executive. But the challenge extends beyond the desiderata of the rule of law. Without dramatizing the point, the challenge may extend to the rule of law itself. Depending on who informs the factual foundation – whose interests count and for what purpose – a finding that the principle of proportionality has not been satisfied applies either to the application of the law or to the law itself. In other words, either the law is unconstitutional as applied to the parties or the law is itself of no force or effect. To focus the proportionality analysis on the application of a law to each set of parties, as Beatty does for the most part, poses a serious challenge to law, making the validity of legislation contingent on how significantly affected each party is by a given legislative measure. A conclusion that a law is (un)-constitutional would be limited to the individual parties before the court, and would have little or no importance as precedent for others. If everything is overly contextualized and subject to case-by-case balancing, the concept of a law of general application becomes a non sequitur: only individual particularized assessments are possible. But as soon as this conception of proportionality or balancing is adopted, ‘nothing that we now recognize as law could exist’.111 The law must ‘predominately, but by no means exclusively, refer to classes of person, and to classes of acts, things, and circumstances’;112 if the received approach to the limitation of rights requires something other than this, then it would seem to ask for something other than the concept of law. By foregoing proportionality and balancing, the limitation of a right could be informed by commitments one makes to political philosophy and the proper role of the State. For example, one may limit freedom of religion in a manner that prevents the State from legislating in a manner that directly assists or promotes a given religion. The limitation of the freedom would be guided by principles of political morality quite independently of the regulative ideas of balancing and proportionality. Given this approach to the limitation of freedom of religion, it would be of no moment that the State is prevented from assisting religious groups that, 111 112

H. L. A. Hart The Concept of Law (2nd edn, Oxford: Clarendon Press, 1994) 124. Hart The Concept of Law 124.

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without State assistance, will eventually be relegated to the textbooks of history. The limitation of freedom of religion, in this sense, would not invite consideration of the intensity of interference with the different ‘interests’, ‘values’ or ‘principles’ at play. Still less would it invite the kind of proportionality analysis engaged with by the Israeli Supreme Court in Horev v. Minister of Transportation (1997).113 At issue in that case was the constitutionality of a government order closing Bar-Ilan Street in Jerusalem to motor traffic on Sabbaths and Jewish holidays during hours of prayer. Having assessed the ‘boundaries between religion and state’ as ‘permeable’,114 the Court applied the principle of proportionality to the government’s order. Evaluating the intensity of the ‘harm to the Ultra-Orthodox public’s religious feelings ensuing from the free-flow of traffic on the Sabbath’ as ‘severe, grave and serious’, the Court evaluated the intensity of the harm to those wishing to make use of Bar-Ilan Street as ‘not excessive’115 so long as the order was modified so that the street would be closed only during prayer times and special permission would be granted to secular residents of Bar-Ilan Street, to security and emergency vehicles, and other residents whose occupation requires the use of a vehicle.116 Without engaging with the merits of the decision, it is clear that none of these considerations would be apposite if freedom of religion was delimited as preventing the State from closing Bar-Ilan Street for religious purposes.

Conclusion 117

With few exceptions, international conventions, constitutions, and legislative bills of rights do not make any reference to the principle of proportionality or to balancing and, notwithstanding the formidable jurisprudence and scholarship of the received approach to the limitation of rights suggesting the contrary, there is nothing intrinsic to rights that would direct one to associate the ideas of proportionality and balancing to the process of practical reasoning about the limitation of rights. 113

114 115 116 117

Horev v. Minister of Transportation [1997] Israel L Reports 153 (Supreme Court of Israel). Horev v. Minister of Transportation 207. Horev v. Minister of Transportation 228. Horev v. Minister of Transportation 227–8, 230. See the Charter of Fundamental Rights of the European Union (2007/C 303/01), art. 52 (‘Subject to the principle of proportionality, limitations may be made only if they are necessary and genuinely meet objectives of general interest recognised by the Union or the need to protect the rights and freedoms of others’ (emphasis added).

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Given that constitutional law is now firmly settled in the received approach, it takes almost ‘an act of will’ to step back and to appreciate that there are different understandings of the limitation of constitutional rights. Indeed, as Isaiah Berlin once wrote, the ‘history of thought and culture is a changing pattern of great liberating ideas which inevitably turn into suffocating straitjackets, and so stimulate their own destruction by new, emancipating, and at the same time enslaving, conceptions’.118 Proportionality and balancing continue to be received as great liberating ideas. My argument is to show them to be constraining and unbecoming of our commitments to rights. We should forgo the received approach and aspire to struggle more explicitly with the moral and political reasoning inherent to all rights. The danger of neglecting to redirect efforts in this way is nothing short of the loss of the concept of rights and the threat to ‘the constitutive potential of constitutional law’.119 Demonstrating an alternative conception of rights and their limitation is the task of the following chapter. 118

119

I. Berlin ‘Does Political Theory Still Exist?’ in H. Hardy and R. Hausheer (eds) Isaiah Berlin: The Proper Study of Mankind. An Anthology of Essays (London: Chatto & Windus, 1997) 76. Aleinikoff ‘Constitutional Law in the Age of Balancing’ 993.

4 Constituting rights by limitation

Introduction How should rights be understood? What conception of rights coheres with a commitment to rights, one that does not invite the frequent justification of rights’ infringements? The previous chapters reviewed how the received approach to the limitation of rights sees rights everywhere but leaves rights controlling nowhere. The aim of this chapter is to rehabilitate rights from the position of inconsequence to which the received approach has relegated them. I will argue that once the limitation of a right is conceived as the specification of the right’s content and scope, rights will emerge – not as opposed to – but as constitutive components of what is justifiable in a free and democratic society and will, in all cases, be absolute. The idea that rights should hold a firm place in moral–political reasoning is not new, but it has been obfuscated by the tendency within the received approach to equate rights with ‘interests’, ‘values’ or ‘principles’.1 Doing so ascribes to rights a status no greater than a premise in practical reasoning. Yet, despite the force of the scholarship and jurisprudence conceiving of rights in this way, there is a long tradition that refuses to equate rights with premises of practical reasoning and no more. For example, Nozick tells us: ‘Individuals have rights, and there are things no person or group may do to them (without violating their rights).’2 For Rawls: ‘Each person possesses an inviolability founded on justice that even the welfare of society as a whole cannot override.’3 For Habermas: ‘If in cases of collision all reasons can assume the character of policy arguments, then the fire wall erected in legal discourse by a deontological understanding of legal norms and 1

2 3

I will here employ, without endorsing, the vocabulary common to the received approach to the limitation of rights, reviewed in Chapters 2 and 3. R. Nozick Anarchy, State and Utopia (Oxford: Basil Blackwell, 1974) ix. J. Rawls A Theory of Justice (Oxford: Oxford University Press, 1971) 3.

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principles collapses.’4 For Waldron: ‘To believe in rights is to believe that certain key interests of individuals, in liberty and well-being, deserve special protection, and that they should not be sacrificed for the sake of greater efficiency or prosperity or for any aggregate of lesser interests under the heading of the public good.’5 And for Dworkin: ‘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.’6 Although the theories of rights proposed by Nozick, Rawls, Habermas, Waldron and Dworkin all differ in important respects,7 none endorses the principle of proportionality or balancing-talk as an inherent part of the account of rights. They do not employ the vocabulary of ‘optimization’ and ‘minimal impairment’ and ‘justifying infringements’. Rather, what is common to most understandings of rights is ‘their strength, their urgency, their peremptory character, even their conclusiveness in political argument’.8 Rights, in other words, are properly understood to ‘have special importance’, an importance that warrants conclusory force.9 This chapter defends a conception of rights as conclusions to practical reasoning.10 I will maintain that once a right is properly defined – that is, once it is delimited by taking into account all of the moral–political reasons that bear on what rights require of us and others in a free and democratic society – a right is not subject to optimization. Being the conclusion of the practical reasoning involved in the process of limitation, a right becomes an exclusionary reason. Understood in this way, a claim of right is a claim ‘to exclude, override, or be immune from, some competing interest or claim of one or many other persons’.11 To 4 5 6

7 8

9 10

11

J. Habermas Between Facts and Norms 258–9 (emphasis in original). J. Waldron ‘A Right-Based Critique of Constitutional Rights’ 18, 30. R. Dworkin Taking Rights Seriously (new impression, London: Duckworth, 2000) 193. See also R. Dworkin ‘Rights as Trumps’ in J. Waldron (ed) Theories of Rights (New York: Oxford University Press, 1989) 166. For a critical review of Dworkin’s theory of rights, see P. Yowell ‘A Critical Examination of Dworkin’s Theory of Rights’ (2007) 52 American Journal of Jurisprudence 93. See generally Waldron Theories of Rights. J. Waldron ‘Introduction’ in J. Waldron (ed) Theories of Rights (New York: Oxford University Press, 1989) 14 (emphasis added). Waldron ‘Introduction’ 14 (emphasis in original). This claim should not be confused for a claim that all conclusions to practical reasoning are rights. Finnis ‘A Bill of Rights for Britain?’ 303, 318.

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interrogate this conception of rights and its relationship to the limitation of rights, I begin by exploring the idea of limitation so misunderstood by the received approach.

A Defining the ‘limitation’ of rights What is the limitation of a right? Without doubt, the received approach looks upon limitations as restrictive, even prohibitive of rights. It supposes that a right can be conceived independently of any limits, such that ‘there is first the right in itself, which is not limited, and secondly there is what is left over once the limit has been applied, that is, the right as limited’.12 Rights, on this understanding, are independent of their limitations – independent of the many ‘interests’, ‘values’ and ‘principles’ which regularly and justifiably infringe rights. Yet, despite being somehow independent of these limits, rights are nevertheless, according to the received approach, subject to such limits. Rights, it would seem, both resist their limits and cannot be wholly appreciated without them. As will be seen, this view is not the only, nor is it the proper understanding of limitations. An alternative view – one that does not conceive of a right and then its limits but rather only of a right constituted by its limitation – better captures our intuitions about rights and their status within practical reasoning. But first, let us examine the difficulties with the view of limitations as burdens on rights.

1

Limitation as restriction

It is trite to say that words communicate meaning and that one’s choice of words potentially discloses a choice as to the meaning that is communicated. The range of words employed by the received approach to describe the interaction between a right and legislation that triggers a proportionality analysis potentially discloses a choice, or at least a preference, as to the meaning that is communicated. Under the received approach to the limitation of rights, both judges and academics appeal to the following words to describe the effect of legislation on a right that triggers a proportionality or balancing exercise: legislation is said to ‘infringe’, ‘prima facie infringe’, ‘violate’, ‘derogate from’, ‘breach’, ‘contravene’, ‘encroach upon’, ‘trench upon’, ‘abridge’, ‘impair’, ‘deny’, ‘override’, ‘trammel’ and ‘incur upon’ a right. When combined with the 12

Alexy Theory of Constitutional Rights 178–9 (emphasis in original).

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question of limitation, the query becomes whether the ‘infringement’, ‘impairment,’ ‘violation’, etc of a right is justified. If these many words have overlapping meaning, it is that legislation is inconsistent with a right – that is: the right requires one thing, the legislation another. This lexicon recalls a distinction drawn by some students of rights between the ‘infringement’ and the ‘violation’ of a right.13 According to this distinction, adopted by the received approach (albeit without careful attention to labels), any action that is, in some way, opposed to a right infringes it but the right is only violated if the action is wrong (or unjustified).14 This distinction allows for action that is justified – indeed, that is not ‘wrong’ – to be nevertheless inconsistent with a right. It suggests that definitions of rights proceed without taking into account the full plethora of considerations that allow one to conclude that the action in question is justified; indeed, from the right’s point of view, the action should not be permitted. The action or behaviour is justified only by stepping out of the right, so to speak, and appealing to other reasons – reasons not considered when the scope and content of the right are defined. Action that is justifiable, that one should be entitled to engage in, may ‘nonetheless be opposed to a right, such that justifying one’s actions to other people does not guarantee that one has not tread on their rights’.15 Reasoning ‘within the right’ provides one answer, whereas reasoning ‘within practical reasonableness’ provides another. Indeed, because legislation can justifiably infringe a right, the right is defined in such a way that the considerations relevant to the justificatory analysis are irrelevant to the right. The difficulties with the vocabulary of ‘infringement’ (and ‘breach’, ‘impairment’, etc) indiscriminately appealed to by the received approach cannot be dismissed merely as a question of semantics. They disclose that the definition of a right is conceived only according to the grounding 13

14

15

See the debate between John Oberdiek and Andrew Botterell: J. Oberdiek ‘Lost in Moral Space: On the Infringing/Violating Distinction and its Place in the Theory of Rights’ (2004) 23 Law and Philosophy 325; A. Botterell ‘In Defence of Infringement’ (2008) 27 Law and Philosophy 269; J. Oberdiek ‘What’s Wrong with Infringements (Insofar as Infringements are Not Wrong): A Reply’ (2008) 27 Law and Philosophy 293. Oberdiek ‘Lost in Moral Space’ 326 referring to J. J. Thomson (‘Some Ruminations on Rights’ in W. Parent (ed) Rights, Restitution, and Risk (Cambridge, Mass: Harvard University Press, 1986) 51 and The Realm of Rights (Cambridge, Mass: Harvard University Press, 1990) 122) and J. Feinberg (‘Voluntary Euthanasia and the Inalienable Right to Life’ (1978) 7 Philosophy and Public Affairs 93). See also A. Gewirth ‘Are There Any Absolute Rights?’ in J. Waldron (ed) Theories of Rights (New York: Oxford University Press, 1989) 92. Oberdiek ‘Lost in Moral Space’ 328.

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‘purpose’, ‘principle’, ‘interest’ or ‘value’ of the right. The principle of proportionality very much assumes that the boundary of the right has already been established, as disclosed by the following common queries: ‘legislation should infringe a right as little as reasonably possible’; ‘the beneficial effects of legislation should be proportionate to its deleterious effects on a right’; ‘the more severe the infringement of a right, the greater the justificatory burden on the State’. These queries all assume that the boundary of a right has been determined prior to the limitation analysis. In other words, the received approach assumes that a right can be defined without taking into account the justifiable actions that may be pursued against the ‘principle’, ‘interest’, or ‘value’ grounding the right. In this way, the received approach promotes a definition of rights that is context-independent, other-independent, even everything-but-theright-holder-independent. The right’s content is fixed, stable and unchanging because it focuses only on the right-holder. The definition of the right ‘never depends on the situation’ such that context – any context, it would seem – ‘does not alter a right’s content’.16 The scope and content of the right are determined exclusively by reference to the right-holder – in the lexicon of the received approach, they are determined by ‘interests’, ‘values’ and ‘principles’ said to define the right. The only relevance of context is to distinguish justified infringements from unjustified infringements. The right itself is largely irrelevant to this determination: it is fixed and cannot engage with the evaluation of justification. It is looking in from the outside, such that assessments of justification are external to the right. These assessments doubtless take the right as a premise in reasoning about justification, but no more. Indeed, if it is permissible for a right to be justifiably infringed, it follows that rights are ‘insensitive to circumstances’.17 The circumstances and the concomitant assessment of justification affect only whether the infringement constitutes a violation because it cannot be justified. As a result, the definition of rights under the received approach is frequently inconsistent with what is required, all things considered. The repeated, successful justification of many ‘infringements’ under the jurisprudence of the European Court of Human Rights, the Supreme Court of Canada and the German Federal Constitutional Court, among other courts, illustrates the proposition. But if rights are regularly and repeatedly justifiably infringed, should one not question the operative 16 17

Oberdiek ‘Lost in Moral Space’ 327, 326. Oberdiek ‘What’s Wrong with Infringements’ 296.

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conception of rights? Should not this reality readily invite one to question the very definition of rights being provided for by the received approach? Might not the problem reside there? By taking only the grounding ‘interest’, ‘value’ or ‘principle’ of a right into consideration and relegating other considerations to evaluating the justification of any infringements, the received approach provides for an expansive and often unjustifiable boundary of a right. By way of illustration, the received approach provides that freedom of expression encompasses all activity that conveys or attempts to convey a meaning.18 This definition includes the right to perjure oneself, publicly to advocate and privately to incite and to give instructions for the violent overthrow of the government, and to disclose State secrets of the highest order. Even if reasonable disagreement properly animates debates over libel and slander, obscenity and indecency, and tobacco and commercial advertising, surely it is uncontroversial to stipulate that one’s activities in perjuring oneself, in publicly advocating the violent overthrow of the government, and in disclosing State secrets of the highest order are outside the true ambit of freedom of expression.19 While it is true that the constitutionality of legislation prohibiting these instances of expression would in all likelihood be maintained under the received approach, it should be recognized as altogether unhelpful to think of such legislation as justifiably infringing free expression. Doing so allows true and genuine instances of expression to be positioned on the same moral–political plane as false and hollow claims of free expression. It allows perjury to parade alongside political debate and the seditious libel of private citizens to claim authority alongside artistic expression. Doing so, we will see, confuses the justified infringements of a right with the proper (because justified) specification of a right. But, one might ask: What is wrong with exaggerating the scope and content of rights? Should not one err in favour of rights? Does not the recourse to justified infringements allow one to curb unjustifiable rightsclaims? And if so, why bother with narrowing the scope of rights? The dangers with overzealous definitions of rights should not be underestimated. They include the ‘devaluation of moral currency’, with the consequence that ‘genuine and genuinely inviolable rights, such as the right 18

19

I take the Canadian example as representative: see Irwin Toy v. Quebec [1989] 1 SCR 927 (Supreme Court of Canada). See Finnis ‘Bill of Rights for Britain?’ 327. This does not mean to deny that reasonable disagreement could animate the mode of regulation.

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of an innocent person not to be intentionally or negligently killed, are put on the same level as spurious (because inflated) claims of right, and are in danger of being watered down’.20 It should strike one as fantastic that perjury and political speech are awarded the same status by the received approach to the limitation of rights: legislation interfering with either instance of expression infringes freedom of expression. A loss to freedom of expression is said to occur in both cases. In neither case is the right peremptory – an exclusionary reason – nor in either case is the claim of infringement dismissed as fallacious. Those distinctions do not operate; they hold no ground. Rather, at all times the right is merely a reason among others in an exercise of practical reasoning. By maintaining that the grounding ‘interest’, ‘value’ or ‘principle’ of a right alone defines the right, the received approach allows a prematurely defined right ‘to trade on the higher prestige and greater strength of a moral right that provides an undefeated reason for action’.21 Although the received approach devalues all rights to mere ‘interests’, etc – although it awards them no weight greater than a reason or premise in practical reasoning – it nevertheless employs the vocabulary of ‘rights’. In doing so, it appeals to the strength, urgency, conclusiveness and special importance of the claim of ‘right’. But in so doing, the received approach fails to award to its conception of rights any strength, urgency, conclusiveness or special importance. It dismisses rights to the status of subordinate considerations, relegated to the background in a proportionality or balancing analysis while maintaining the label of ‘rights’, which, properly understood, resists such dismissive treatment. This approach to rights devalues moral currency and dismisses moral commitment. By being too ‘generous’ with the label of rights, the received approach encourages too many justified infringements of rights with the consequence that claimants come to think of rights as mere interests that can be defeated by other interests. Rights hold no undefeated moral status; they are merely premises – never conclusions – in practical reasoning. Rights lose their claim to moral commitment and gain the status of defeasible moral premises. Now, the idea of defeasible moral premises is not new; defeasible premises are ‘the common coin of practical reasoning’.22 20

21 22

J. M. Finnis ‘Some Professorial Fallacies About Rights’ (1971–1972) 4 Adelaide Law Review 377, 388. Miller, ‘Justification and Rights Limitation’ 96. J. Oberdiek ‘Specifying Rights Out of Necessity’ (2008) 28 Oxford Journal of Legal Studies 127, 138.

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Reasons – like ‘interests’, ‘values’ and ‘principles’ – are rarely (if ever) conclusive on their own. It is only when argued alongside other reasons that one can come to an indefeasible conclusion and postulate an exclusionary reason. But what is the consequence of understanding rights as mere reasons and as nothing more? The answer is nothing short of redundancy. Rights cease to hold special status. What, if anything, is gained by employing the label ‘rights’ as a substitute for ‘reasons’? If rights are merely reasons according to the received approach, why bother at all with the label ‘rights’? Indeed, it is telling that the received approach sometimes foregoes the language of rights altogether: the discourse of ‘competing interests’, ‘competing values’, and ‘optimizing principles’ suggests that the place of rights under the received approach is never secure, indeed never truly important or special. It would appear that for the received approach, rights are merely another way of talking about what is already covered by ‘interests’, ‘values’ and ‘principles’. Little if anything more is gained by employing rights-talk, but much is lost: the very concept of right becomes questionable. To speak of rights as though they were synonymous with ‘interests’ or ‘values’ obfuscates the merits and moral worth of rights. The exaggerated claims about rights promoted by the received approach should be recognized as unhelpful and overall detrimental to rights and their role in moral–political reasoning and discourse. It is, I believe, this uncritical approach to rights that is guilty of ‘promot[ing] unrealistic expectations’.23 Accounts of rights that focus only on facts about the right-holder are ‘silen[t] concerning responsibilities’ and ‘personal and civic obligations’ and easily ‘promote mere assertion over reason-giving’.24 But properly conceived rights have the potential to contribute to moral–political discourse and to encompass responsibility and obligation with the definition of rights. Properly specified rights, as we will see, can avoid the vices of overzealous rights-talk.

2

Limitation as specification

What account of rights avoids redundancy and coheres with the strength, urgency, conclusiveness and special importance awarded to rights? Despite the formidable scholarship and jurisprudence to the contrary, the conception of rights disclosed by the very idea of limitation orients 23

Glendon Rights Talk 14.

24

Glendon Rights Talk 14.

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one in the proper direction. For the idea of limitation (and the very idea of limitation clauses) instructs one to understand rights as conclusions to practical reasoning that take into account not only the ‘interest’, ‘value’ or ‘principle’ grounding the right, but also the plethora of other considerations that determine the justifiable scope and content of the right in a free and democratic society. Rights, on this account, are to be specified such that justifiable behaviour never infringes a right. Rights, once properly specified, can never be justifiably infringed; they are either complied with or violated – there is no in-between. And, as will be seen, that is the directive inherent in the concept of a limitation clause. The conspicuous, near total absence of the word ‘limit’ from the jurisprudence and scholarship of the received approach to the limitation of rights, despite it being the key word of limitation clauses themselves (‘… subject only to such reasonable limits …’; ‘… may be limited only in terms of …’), raises probing questions. Though strict adherence to constitutional text and recourse to dictionary definitions does not exhaust the journey into constitutional meaning, it is clear that the words employed by the court and academia – ‘infringement’, ‘impairment’, ‘breach’, etc – do not belong to the same set as the synonyms of ‘limit’, which include ‘border’, ‘boundary’, ‘confines’, ‘demarcation line’, ‘perimeter’, ‘circumscribe’ and ‘define’.25 The words ‘infringement’, ‘impairment’, ‘breach’, etc all assume what the synonyms of ‘limit’ seek to determine: namely, the boundary of a right. The chasm between these two sets of words could not be greater. The courts’ and academia’s (almost exclusive) reliance on the one and (almost total) ignoring of the other suggests a profound misunderstanding of what constitutes the limitation of a right and, thereby and therefore, what constitutes a right.26 As a consequence of invoking the ‘infringement’ rather than the ‘limitation’ of a right to trigger a limitation clause inquiry, the received approach proceeds erroneously, conceiving of limitations as prohibitive and restrictive of the right. Rights, on this understanding, oppose all reasons except for the reasons grounding the right. Limitations are not understood as constitutive of the right. But they should; for without 25

26

Oxford Dictionary of Synonyms and Antonyms (Oxford: Oxford University Press, 2005) ‘limitation’, ‘limit’. For example, Gardbaum suggests that ‘[w]hatever the domestic label employed … the reality is the permissibility of infringing, limiting, restricting or overriding that right’ (footnote omitted) as though there was no qualitative difference between these four terms: Gardbaum ‘Limiting Constitutional Rights’ 789, 808.

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limitation, rights are too indeterminate to be relevant and cannot avoid redundancy. Indeed, the received approach uncritically, but by necessity endorses some form of limitation. For in selecting one (or more) ‘interest’, ‘value’ or ‘principle’ as grounding the right, the received approach chooses that one (or more) ‘interest’, etc as a limitation of the right. That very selection orients the right in a given direction; it delimits its scope and content somewhat, however tentatively. Consider, for example, the difference in the potential scope of freedom of expression if the grounding ‘interest’, ‘purpose’ or ‘value’ is taken to be individual self-fulfilment, the pursuit of truth, or participation in democratic decision-making. Choosing one or more (or another) grounding ‘interest’, etc already begins the delimitation of the right’s scope and content. Consider how the relationship of artistic expression to freedom of expression depends on whether the grounding ‘interest’, etc is democratic participation, the pursuit of truth or individual self-fulfilment. Although it is obvious that artistic expression may find itself within or beyond the scope of free expression depending on which ‘interest’, ‘value’ or ‘principle’ is identified as being the ‘interest’, ‘value’ or ‘principle’ defining free expression, the received approach does not conceive of this limitation as restrictive. And rightly so. But for this limitation, but for the identification of a grounding ‘interest’, etc, there would be no right to speak of. One cannot contemplate freedom of expression without appealing to something and by appealing to that ‘something’, one is already engaged in the process of limitation. In this sense, it is a tautology to affirm that all rights are limited. Rights lack sense and justification as claims unless they are conceived within limits. One might say that a claim of right presupposes or implies proper limitation. No right without limitation is comprehensible or accessible; there are, in short, no unlimited rights. The received approach conceives of only these preliminary limitations as constitutive and all others as restrictive, with the consequence that rights remain incompletely limited and, therefore, incomplete as rights. They are not fully delimited and therefore cannot determine what is required in any one case. Rights, under the received approach, can aspire to be no more than premises, pro tanto reasons in an argument. To gain their status as rights with conclusory force, they require further constitution by delimitation. The limitation of a right – and not only the preliminary identification of the relevant ‘interest’ or ‘value’, etc – should be understood as enabling, grounding the right within the moral–political universe of a free and democratic society. This approach to rights emphasizes rights as conclusions to practical reasoning.

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There is no doubt that the assertion ‘P has a right to φ’ has, in political and moral discourse, an aspiration to conclusory force: it presumes, or operates on the assumption, that there are answers to questions about the scope and content of the right and the corresponding duties (or disabilities or obligations) others are under with respect to one’s right to φ. When properly used, one should not make claim to a right unless one has arrived at the conclusion of practical reasoning as to whether another is under a duty (or disability or obligation) with respect to one’s claim to φ. We may, for present purposes, maintain that in asserting a right, P claims that the right includes: ‘a positive or negative requirement (obligation) imposed upon B (including, inter alia, any requirement not to interfere with [P]’s activity or with [P]’s enjoyment of some other form of good)’ or ‘the ability to bring it about that B is subject to such a requirement’ or ‘the immunity from being himself subjected by B to any such requirement’. 27 Now, it is true that many assertions of rights, as with the jurisprudence and scholarship of the received approach, do not proceed from the conclusion of practical reasoning, but rather seek only to trigger an investigation into the ‘optimization’ or ‘proportionality’ of the rightsclaim. That the language of rights is abused and exaggerated in contemporary discourse does not detract from the aspiration rights-claims have to conclusory force – that is, the making of a claim with the implication that others are under a duty to acknowledge, respect and satisfy that claim. By understanding the central role of rights as conclusory, the moral status of and one’s moral commitments to rights are comprehensible. Rights are not, as is the case with the received approach, merely those matters that trigger further analysis; they are not only premises in argument. Rather, under a conclusory conception of rights, ‘one argues towards rights, not from them’.28 One argues to special importance, to peremptory status, to exclusionary reason, to conclusory force. One is only in a position to assert a right after having specified – that is, 27

28

Finnis Natural Law and Natural Rights 205 (emphasis in original). I do not here review further the Hohfeldian analytical structure of rights, including privilege, claim, power and immunity: see W. N. Hohfeld Fundamental Legal Conceptions As Applied in Judicial Reasoning (New Haven: Yale University Press, 1919). I will generally employ the language of ‘claim’ and ‘duty’ as shorthand for the numerous other possible specifications of the open-ended claim ‘P has a right to φ’. Oberdiek ‘Specifying Rights Out of Necessity’ 141 (emphasis in original); Oberdiek ‘Lost in Moral Space’ 339.

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delimited, bounded, circumscribed, demarcated – the scope and content of the right. This coheres with our intuitions about rights which, despite the distortions promoted by the received approach, reveal that ‘[w]hen we ask whether there is a right to such and such, we are asking whether someone may at the end of the day demand something of someone else’.29 That question cannot be answered by the received approach. The mere assertion of a ‘right’ under the received approach cannot demand anything of anyone. Simply stated, the definition of rights under the received approach is a radically incomplete basis for drawing the proper limits of rights. While affirming that the ‘interest’, ‘value’ or ‘principle’ of a right determines nothing would be too strong, it remains the case that it determines much too little in the limitation of a right. Let us return to the example of free expression. By appealing to the idea of limitation as specification, one will recognize that freedom of expression in the abstract is an empty set, a mere placeholder. One must delimit – that is, specify – its scope and content in order to actualize the right. One comes to understand and comprehend the right both by specifying what is within as well as what is excluded from its scope. Thus, one must engage in practical reasoning in order to conclude whether freedom of expression extends so far as to encompass libel, slander, flag burning, political financing, pornography, obscenity, perjury, racist speech, holocaust denial, commercial advertising, fraud and so on. But answers to these preliminary queries do not alone exhaust the specification of the right. Before a right can secure conclusory force in moral–political discourse, it must undergo a comprehensive process of boundary-setting, concretization, specification, definition; in short: of making the right determinate. In addition to identifying the answers to the many debates that animate arguments about any given right, the following six features identified by Finnis are also in need of specification in the process of limitation: (a) the identity of the duty-holder(s) who must respect or give effect to A’s right; (b) the content of the duty, in terms of specific act-descriptions, including the times and other circumstances and conditions for the applicability of the duty; (c) the identity or class-description of A, the correlative claim-right-holder(s) …; (d) the conditions under which a claim-right-holder loses his claim-right, including the conditions (if any) under which he can waive the relevant duties; (e) the claim-rights, 29

Oberdiek ‘Lost in Moral Space’ 339.

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the negotiable constitution powers, and liberties of the claim-right-holder in the event of nonperformance of duty; and, above all, (f) the liberties of the right-holder, including a specification of the limits of those liberties, i.e. a specification of his duties, especially of non-interference with the liberties of other holders of that right or of other recognized rights.30

These six features do not, of course, do all the work necessary to translate an underspecified right into a delimited right. Nevertheless, they point to the complexity and diversity of choices available in the process of limitation. Feature (f) alone allows one to appreciate how the process of limitation for one right requires that one hold in one’s mind the process of limitation for ‘other recognized rights’. For example, one must determine whether the limitation of freedom of expression includes the liberty to seek to destroy another’s reputation and livelihood by malicious falsehood? By negligent but gross falsehood? By falsehood where there is no public interest at stake? By any falsehood? The principal idea here is that one engages in reasoning so as to argue towards rights. One cannot argue from rights given that, before rights are delimited, the very concept of rights is largely empty – one cannot ‘start with rights’, so to speak.31 At the beginning, all one has are defeasible reasons. No doubt, those reasons may be more than preliminary; one may have gone some way in identifying the grounding ‘interest’, ‘value’ or ‘principle’ of a right. One may even have engaged in considerable practical reasoning to identify precisely what that ‘interest’ or ‘value’ is. But even in this case, the preliminarily conceived right represents only an intermediate conclusion reflecting some, but not all considerations relevant to delimiting the scope and content of the right. These intermediate conclusions are ‘conclusions by virtue of summarizing some of the relevant fundamental practical reasons’ but are merely intermediate because ‘further reasons beyond those that ground a right may yet counsel in favour of acting contrary to the right’.32 The following example – Joel Feinberg’s Cabin Case – illustrates well the intermediate conclusionary status of underspecified rights: Suppose that you are on a backpacking trip in the high mountain country when an unanticipated blizzard strikes the area with such ferocity that

30 31 32

Finnis Natural Law and Natural Rights 218–19. Oberdiek ‘Lost in Moral Space’ 340. Oberdiek ‘Specifying Rights Out of Necessity’ 134 (emphasis in original). The conception of rights as intermediate conclusions between interests and duties is reviewed in Raz The Morality of Freedom ch 7.

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your life is imperiled. Fortunately, you stumble onto an unoccupied cabin, locked and boarded up for the winter, clearly somebody else’s private property. You smash in a window, enter, and huddle in a corner for three days until the storm abates.33

Under the received approach, one would conclude that you have infringed the cabin owner’s property right by breaking into the cabin.34 The definition of the right to property under the received approach doubtless would extend to exclusive dominion over the cabin. That is an intermediate conclusion with respect to the right to property given that it is based on a summary of some (but only some) of the practical reasons relevant to determining the scope of the property right. Clearly on this account, by entering without the owner’s permission, you have infringed the right. However, let us assume that you were justified in doing so: that saving your life was a better reason than respecting the boundaries of private property. Under the received approach, one would conclude that the infringement was justified. The ‘balancing of competing interests’ or the ‘optimization of each of the competing principles’ would lead one to conclude that, despite the infringement of the right, you were justified in entering the cabin to save your person. The assessment is altogether different when the limitation of a right is understood as constitutive of the right. When conceived as the conclusion to practical reasoning, the right to property does not extend so far as to exclude you from entering the cabin to save your life. The determination that it is permissible for you to enter the cabin is the final conclusion about (this aspect of) the scope and content of the right to property. What reason is there for nevertheless holding on to the intermediate conclusion that prevented you from entering, even in these circumstances? Is not the conclusion that you were justified in entering the only conclusion that matters? To suggest that you have infringed the cabin owner’s property right, albeit justifiably, misconstrues the case at hand. It invests an importance in intermediary conclusions about rights which the right in question, once conclusively defined, quite simply does not have. Indeed, it invites an ‘artificial bifurcation’ of limitations that constitute and those that restrict the right by ‘invest[ing] special moral

33 34

Feinberg ‘Voluntary Euthanasia and the Inalienable Right to Life’ 102. Let us put aside the question of compensation for any damage to the cabin occasioned by your entering.

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significance in an intermediate conclusion about what it is permissible to do instead of in the final conclusion about what it is permissible to do’.35 The specified conception of rights, the view that limitations are constitutive rather than restrictive, combines the two questions that the received approach insists must be kept separate: ‘the question of a right’s content and the separate question of a right’s normative implications’.36 By defining the right’s content only by reference to facts about or reasons pertaining to the right-holder, the received approach has a fixed, stable and unchanging scope and content, but the right’s normative implications are neither fixed nor stable nor unchanging.37 They depend on context. Determining whether the right will remain standing cannot be determined by its scope and content. Indeed, because the question of limitation is divided in two, because only some limitations are understood to be constitutive while others have a restrictive status, it is always ‘a further question whether behaviour that conflicts with a given right is justified or not’ and the answer to that question will indeed be contextdependent.38 The right’s definition provides one with very little. This bifurcation between the scope and content of the right and its normative implications has consequences not only for the infringement of rights, but also for their exercise. It allows for the possibility that the exercise of a right should be more restrained than the right itself. It makes room for the idea of an abuse of right, the idea that one can exercise a right yet do so unjustifiably. But ‘[w]hat justification can there be for making claims, knowing that one cannot and will not defend them when questioned about their implications?’39 Does this not appeal to intermediate conclusions rather than final conclusions about the scope and content of rights? Does it not reveal that the improper exercise of a right and the concomitant idea of an abuse of right are ‘juridically improper concepts’?40 Is not the distinction, on proper analysis, actually one

35 36

37 38 39

40

Oberdiek ‘Specifying Rights Out of Necessity’ 134 (emphases omitted). Oberdiek ‘Specifying Rights Out of Necessity’ 128. For example, the Supreme Court of Canada, like many other courts under the received approach, maintains that it is ‘highly desirable to keep [the two questions] analytically distinct’: R v. Oakes 134. Oberdiek ‘Specifying Rights Out of Necessity’ 127. Oberdiek ‘Specifying Rights Out of Necessity’ 127 (emphasis added). Finnis ‘Some Professorial Fallacies About Rights’ 387. The definition of a right could also take into account improper motives for initiating the exercise of a right. See Finnis ‘Some Professorial Fallacies About Rights’ 387: ‘“Abuse of right” is a juridically improper concept. If it means anything juridically relevant it means absence of right’.

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between the exercise of a right and the exaggerated and unjustified claims made by some with respect to the limitation of a right? By understanding rights as constituted by their specification, one ‘identifies the content of a right in light of and indeed in response to what is justifiable to do under the circumstances’.41 To return to our example above, because the cabin owner’s right to property never extended so far as to prohibit you from entering to save your life, the scope and content of the right is understood to match its normative implications. If rights are conclusory, if one should only assert a right after having struggled with the practical reasoning that concludes in a right, then preliminary non-conclusory statements of rights are either rhetorical sleights of hand or aspirational pronouncements. The former are common – they suffer from many of the vices of rights-talk that plague attempts to compromise and to accommodate. While doubtless effective rhetorically, no resolution to a debate can come about when it is framed exclusively in terms of prematurely specified rights. In these circumstances, each side simply ‘begs the question against the other’.42 Now, there is no doubt that the successful rhetoric of premature rightsassertions draws (albeit inappropriately and unjustifiably) on the status of rights conceived as conclusions to practical reasoning. No rhetorical advantage would be gained by the rather truer statement that by appealing prematurely to ‘rights’, one is, in fact, merely asserting an ‘interest’, ‘value’ or ‘principle’, or – more generally – a ‘reason’. Although that is all that one is doing in prematurely employing the discourse of rights, one hopes to pass off as complete an underdetermined understanding of what rights require. One attempts, by rhetorical sleight of hand, to end debate by asserting: ‘I have this right and you are under a duty (or disability) to me with respect to my right’. In asserting this, one is unjustifiably communicating the following claim: ‘It has been determined following practical reasoning that I have a right in these circumstances, such that you may not now reason further beyond this right. My right is the conclusion to practical reasoning such that your duty is not to engage further in such reasoning but rather to respect my right.’ But, framed in this way, we see how the premature assertion of a right is no more than a rhetorical sleight of hand to discourage another from engaging in the very practical reasoning that must be engaged in for the right to hold. 41 42

Oberdiek ‘Specifying Rights Out of Necessity’ 128. Oberdiek ‘Lost in Moral Space’ 340.

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Now, does it follow that one may not appeal to the language of ‘rights’ until one has engaged fully in the reasoning process through to the conclusion that is the specified right? The answer is both yes and no. That is, one may not appeal to the language of rights in the same way when one appeals to rights prior to as opposed to as a conclusion to practical reasoning. One can tentatively claim a right even before having satisfied oneself that reasoning through to a conclusion would support one’s claim of right. However, in these circumstances, one should be circumspect in appealing to the language of rights. One’s statements should be appropriately qualified; for example, one may raise the query: Is there not a right here? Or: Does this not constitute a violation of a right? These more hesitant formulations acknowledge to others that one invites them to engage in the practical reasoning that one has not yet completed. To take the illustration from the previous paragraph, one might state the following: ‘I have engaged in practical reasoning and, although I have not concluded the reasoning process, I believe there to be a right in these circumstances. Should you disagree, do introduce arguments to the contrary so that we might test my preliminary assessment.’ In so speaking, rights avoid being mere rhetorical flourishes that aim to deflect one away from reasoning. So understood, one should avoid making rights-claims until the process of limitation has been carried out or one should make clear that in making incomplete rights-claims one is (perhaps inappropriately) appealing to the idea of rights at an intermediate stage in an argument about limitation. Does this understanding of rights as conclusions deny that rights are ever reasons? One must be careful here. Rights are never reasons in determining what constitutes a right; one argues towards and not from rights. However, rights may be reasons once that practical reasoning process has been carried out. For example, a right will be a reason in evaluating one’s claim that a right has been violated. Any ruling on that claim will take the right as a reason in the process of argument, as in the syllogism: right requires that x obtain; x does not obtain; ergo: the right is violated. But the reason that is the right in this illustration is itself a conclusion to a prior process of practical reasoning, a process devoted to delimiting the right. For example, the right ‘Everyone has freedom of expression’ (once properly limited) is a reason for concluding that ‘I have a right to write this chapter.’ This second statement is a conclusion derived from a proper limitation of the underspecified guarantee of freedom of expression common to most charters of rights. Of course, it is not a conclusion

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of all possible argument, because in any given ruling on the question of my right to write this chapter, there will be arguments about enforcement, legal costs and other implications. So understood, the right (itself a final conclusion) may serve as a premise in further argument towards some further conclusion. It bears emphasizing that the conclusion arrived at by relying on the right as a premise is, in a sense, a further conclusion; that is, a conclusion that proceeds from the premise that the right is itself a conclusion to a previous process of practical reasoning. One might say that the right serves as a rule applied in a ruling.

B

The specification of rights

Limitation clauses provide that rights and freedoms are guaranteed subject only to such reasonable limitations as are prescribed by law and are necessary or justifiable in a free and democratic society. By understanding limitation as specification, one can read a limitation clause as calling for ‘reasonable boundaries’ or ‘reasonable definitions’ or ‘reasonable perimeters’ of rights. Understood this way, a limitation clause is a directive to delimit the open-ended guarantees of rights; rights which are not completely determined by the guaranteeing instrument itself. A limitation clause suggests that the meaning of rights cannot be exhaustively ‘discovered’ in the text or by reference to the intent of the constituent authorities or the original public meaning of the bill of rights. Rather, this approach accepts that rights are largely underdeterminate and should be made determinate – constituted – by limitation. Through the limitation clause, the authority charged with actualizing rights is mandated to specify the rights guaranteed – but not completely delimited – by the charter of rights itself.43 This reading of a limitation clause is foreign to much thinking on the limitation of rights, as can be illustrated by the frequent references to limitation clauses as ‘saving provisions’. It is said that with a limitation clause, the legislature can ‘save’ or ‘salvage’ the constitutionality of its legislation despite the ‘infringement’ of a right. It is thus that much scholarship is ambivalent about limitation clauses, viewing them as tools available to the legislature to infringe rights. It is said that but for limitation clauses, all rights would enjoy expansive scope and application 43

The absence of a limitation clause should not be taken to suggest that the bill of rights itself provides for the comprehensive limitation of the rights it guarantees. Rather, it merely follows that the necessary process of limitation is not made explicit.

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and not be constrained by competing ‘interests’ or ‘values’. Rights could enjoy limitless potential, but are held back by a limitation clause that allows the legislature to infringe rights, albeit justifiably. For example, in the context of the European Convention, the limitation clauses are understood by some to be accommodation or restriction clauses, as though they require that rights be accommodated or restricted in the name of competing ‘interests’.44 In turn, the Supreme Court of Canada presents the Canadian Charter’s limitation clause as allowing for the ‘justification of rights-violations’ which requires a ‘high’ burden on the State because ‘any [limitation clause] inquiry must be premised on an understanding that the impugned limit violates constitutional rights’.45 In the South African context, the limitation clause is said to serve as ‘a reminder that the rights enshrined in the Constitution are not absolute’ because the State may uphold a ‘restriction’.46 This ambivalence respecting limitation clauses is reflected in the short title of the limitation clause of the Israeli Basic Law: Human Dignity and Liberty: ‘violation of rights’.47 However, other limitation clauses recognize the necessary and constitutive relationship between limitations and rights. For example, the Charter of Fundamental Rights of the European Union refers to its limitation clause as providing for the ‘scope and interpretation of rights and principles’48 and the Canadian Charter refers to its limitation clause as the source of the very ‘guarantee’ of rights.49 The Victorian Charter of Human Rights and Responsibilities, for its part, acknowledges the relationship between ‘what [human rights] are and when they may be limited’.50 These latter illustrations nod in the direction of rights as conclusions to practical reasoning, not one premise among others. In so doing, they point to the necessity of specifying rights. 44

45 46

47 48 49 50

See eg Letsas A Theory of Interpretation of the European Convention on Human Rights; Greer The Exceptions to Articles 8 to 11 of the European Convention on Human Rights. R v. Oakes [63]. S. Woolman ‘Limitation’ in M Chaskalson et al (eds) Constitutional Law of South Africa (1st edn) (Cape Town: Juta, 1996) 12–1 to 12–3 (emphasis in original). Basic Law: Human Dignity and Liberty (1992) (Israel), s 8. Charter of Fundamental Rights of the European Union (2007/C 303/01) art. 52. Canadian Charter of Rights and Freedoms, s 1. Charter of Human Rights and Responsibilities Act 2006 no 43/2006 (Victoria) s 7. The New Zealand Bill of Rights Act 1990 no 109 refers to ‘justified limitations’ (s 5); the Constitution of South Africa refers to the ‘limitation of rights’ (s 36), and the Australian Capital Territory’s Human Rights Act 2004 A2004–5 provides that ‘Human rights may be limited’ (s 28).

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But how is the right’s specification brought about? Can it be logically derived or rationally determined? How do specified rights interact with the moral–political universe of a free and democratic society? And are specified rights absolute? These are the questions to which our attention now turns.

1

Reason, determinatio and choice

That rights must be specified – that they are not constituted absent specification – does not determine the mode of practical reasoning to specification. While we have reviewed that the guarantee ‘P has a right to φ’ has ‘hundreds if not thousands of possible legal meanings’,51 we now turn to the corresponding reality that that same assertion ‘has hundreds if not thousands of possible moral meanings within the moral discourse about what the morally just legal system should stipulate’.52 Which one of the hundreds or thousands of possible meanings is the proper moral– political meaning that will, in turn, inform the legal meaning? Are these evaluations self-evident? It would seem, following Finnis, that ‘the only way to specify the meaning of “right” in some claim of right … will be to appeal to some principles which are pertinent in moral discourse but which are not expressed in terms of “rights”.’53 These ‘principles’ must be more basic than rights given that rights will be the conclusions to practical reasoning about how to specify the claim that ‘P has a right to φ’. Those underlying reasons (or principles) will serve as the justifications for rights. Rights will enter the stage only following, perhaps only as, ‘the final interaction of relevant practical reasons’.54 But while the operation is one of practical reasoning, it is not wholly rationally determined. Little in moral–political discourse is self-evident; much relies on moral judgment, evaluation and ultimately choice. The specification of rights is guided by reason, determined in part by reason, but not wholly concluded by reason. The translation of an open guarantee to a specified right is ‘an intellectual process which is not deductive and does involve free choice (human will) and yet is intelligent and directed by reason’.55 This process – labelled determinatio by Aquinas and translated insofar 51 52 53 54 55

See Finnis ‘Some Professorial Fallacies About Rights’ 385–6. Finnis ‘Some Professorial Fallacies About Rights’ 386. Finnis ‘Some Professorial Fallacies About Rights’ 386. Oberdiek ‘Specifying Rights Out of Necessity’ 135. J. Finnis ‘On “The Critical Legal Studies Movement”’ (1985) 30 American Journal of Jurisprudence 21, 23.

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as the English language will admit by Finnis as ‘specification’, ‘concretization’ or ‘implementation’ – is: a particularization of general ideals, commitments, and principles by architects, musicians, legislators, and jurists, by steps none of which is itself necessary, and all of which could reasonably have been in some respect different – so that there is, in these myriads of instances, no uniquely correct solutions – but all of which are reasonable and none of which could without risk of error have been taken randomly or without regard to coherence with the larger whole constituted both by the initial general idea or ideas of value, commitment, or principle and by the steps already taken.56

In order to grasp the idea of determinatio in relation to the specification of rights, the practical arts provide a helpful analogy. Following Aquinas, Finnis invites us to imagine the general idea or form of a ‘house’, ‘door’ or ‘door-knob’.57 As with the placeholder ‘P has a right to φ’, the abstract idea of a ‘house’ must be made determinate for the construction of this house, without which there will be no house to speak of. The specification of the idea or form is certainly guided, even ‘derived from and shaped by the general idea’58 but is not fully determined by the general idea. Indeed, along the path of specification, one confronts a ‘multitude of choices’ in ‘many (even in every!) particular dimension and aspect’ of designing the house.59 The basic idea of a house, door or door-knob controls but cannot fully determine the specified construct that is this house, door or door-knob. In the construction of the artefact, one is called upon to make choices that are invited (even identified) by the idea or form, but which cannot be answered by the idea or form itself. No doubt, the idea of the artefact eliminates some options and identifies an acceptable range of possibilities from which to select. But the idea itself cannot select the height and the width of this artefact. And because of this, ‘until it is fully determinate the artefact is non-existent or incomplete’.60 The same intellectual process of determinatio obtains for rights. The specification of a right requires one to identify the class of right-holders, the class of duty-holders, the scope and content of the right and the duty (including the circumstances and conditions in which it obtains), the circumstances and conditions under which the right-holder loses or can 56

57 58 59 60

Finnis ‘On “The Critical Legal Studies Movement”’ 38 (emphasis in original); Finnis Natural Law and Natural Rights 284–6, 294–5, 380; Finnis Fundamentals of Ethics 139–42. Finnis Natural Law and Natural Rights 284. Finnis Natural Law and Natural Rights 284. Finnis Natural Law and Natural Rights 284. Finnis Natural Law and Natural Rights 284.

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waive the right, the consequences for the right-holder and for the dutyholder for failure to satisfy the duty, and so on. This requires one to actualize each of these features within the existing moral–political and legal systems, including a determination for each of the classes of civil or criminal or other responsibilities incumbent on individuals, not to mention those of the State. The idea of a right guides the process of specification, but cannot identify which path must be followed from beginning to end. The many choices from among rationally supported alternatives involved in limiting a right allow one to appreciate the different reasonable specifications of a right available in the process of limitation. It is a fact of the world that different people will specify a right differently, but the evaluation that disagreements between people can be reasonable illustrates the availability of different reasonable limitations. The difficult choices that must be made in specifying a right will be informed – but not always decided or determined – by one’s understanding of political morality and other matters of deep concern. The complexity of the process of limitation is in part a result of the fact that practical reasoning underdetermines the answers, often providing good but non-decisive reasons for any one among many alternative limitations. The study of incommensurability undertaken in Chapter 3 illustrated the limited domain of reason and the importance of choice and, ultimately, decision when one is confronted by different rationally appealing options in the process of specification. The practical reasoning which takes one from the underdetermined guarantee ‘everyone has a right to φ’ to the specified right ‘class A (but not B) has a claim that φ obtain and class X and Y (but not Z) are under a duty with respect to class A that φ obtain, but only in circumstances C1 and C2, and so on …’ is not rationally determined from beginning to end. Of course, some of the alternatives that confront one in the specification of a right will be rationally determined, as when one alternative is preferable according to all that matters with respect to the two alternatives. But often, two (or more) alternatives will be rationally appealing; each will be supported by reasons indicating that it be preferred. In this circumstance, one must decide to choose one alternative over the other(s), relying on a reason (or set of reasons) that are undefeated by others but which themselves do not defeat all others. Here, nothing but the ‘choosing itself settles which alternative is chosen’.61 In this way, the process 61

Finnis ‘Commensuration and Public Reason’ 220; Finnis Fundamentals of Ethics 137–8. On the constitutive nature of choice, see Finnis Natural Law and Natural Rights 284–6, 294–5, 380; Finnis Fundamentals of Ethics 139–42.

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of practical reasoning for specifying the right, because it is confronted by these choices, is ‘genuinely creative’, precisely because it is ‘not merely the product of anything that was already “there”’: that is, nothing antecedent to the choice could have settled the choice.62 The act of choosing is significant, and not only because it is necessary for the specification of the right. Its creative significance extends beyond the particular instance because the choice lasts.63 It lasts not only in the right just constructed by that choice, but also in the further role it plays when one is confronted by similar alternatives. As we make choices between rationally appealing but incommensurable alternatives, we establish (albeit contingently) the ‘right’ answer for us. These stipulated ‘right’ answers will assist us, in some subsequent cases, in evaluating the merits of alternative options for us.64 In the absence of such previously undertaken commitments, some alternatives would be incommensurable but, for us, they have been commensurated by our prior choices and commitments to those choices. For example, if asked whether it is ‘fair to impose on others the risks inherent in driving at more than 10 mph’, we may answer: ‘Yes, in our community, since our community has by custom and law decided to treat those risks and harms as not too great.’65 Because there is no rational critique of that decision – nothing short of deciding could settle the question – the making of that decision is a creative act; at the very moment the decision is taken, the practical reasoning of the chooser (and the people on behalf of whom the choice is made) is coloured by the fact that the decision establishes that the risks to health have thereby been made commensurate (but only in some respects) with the speed of driving. The choice has created a new ‘something’ antecedent to a possible new ‘choice’ that may confront us in future practical reasoning, such that the choice previously made could settle a subsequent ‘choice’ – indeed, could eliminate that very ‘choice’.

2

Rights and the moral–political universe

The claim that one ought to reserve the label ‘right’ until the process of limitation is carried out is loaded with moral consequences. Not only is it harmful to clear thinking to conclude prematurely that a right has been 62 64 65

Finnis Fundamentals of Ethics 138. 63 Finnis Fundamentals of Ethics 139. See Finnis Natural Law and Natural Rights 111–12; Finnis Fundamentals of Ethics 90. Finnis ‘Natural Law and Legal Reasoning’ 149 and Finnis ‘Commensuration and Public Reason’ 228.

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defined, it also devalues the moral worth of a right to formulate its limitation in such a manner that the right cannot reasonably aspire to conclusory force, that its infringement is expected (even encouraged), that it seeks only to be ‘optimized’, and that it is constantly opposed to the other requirements of a free and democratic society. The conception of specified rights, on the other hand, provides that rights should be delimited in all the complexity and contingency of political life and one’s being-together-with others. This approach avoids the reification of rights – the depersonalization and abstraction of rights from their moral–political context.66 When rights are not specified fully, when they can be justifiably infringed, the moral universe is burdened and complicated. What rights require does not match what practical reasoning requires. One is given one directive by the right which is contradicted by the directive given by practical reasoning. Only specified rights – rights identified only after the process of practical reasoning has been carried to a final (not intermediate) conclusion – are made to cohere with the moral–political universe of a free and democratic society. The view of rights promoted by the received approach is only partially moralized – it divides the moral–political universe into constitutive and restrictive limitations and, in so doing, positions rights ‘outside of the moral system looking in’.67 Specified rights are moralized all the way down – the scope and content of a right and its concomitant responsibilities, duties, disabilities and obligations on others match what is normatively required. Because the justifiable specification of a right will ‘vary according to time, place and circumstance and everything else that affects the good’ of each member of the community, 68 one cannot conceive of a right absent a moral–political universe. In the same way that ‘legal rights make no sense outside of a wider legal system, moral rights make no sense outside of a wider moral system’.69 Were it otherwise, rights would be both part yet independent of the moral–political system, both commanding and being unable to command, requiring as intermediate conclusions what should not obtain as final conclusions. Yet, because rights are part of our moral–political universe, they must be specified in such a way that is compatible with understandings of duties, obligations and no-claims 66 67 68 69

This formulation is Oberdiek’s: ‘Specifying Rights Out of Necessity’. Oberdiek ‘Specifying Rights Out of Necessity’ 129. Finnis ‘Some Professorial Fallacies About Rights’ 386. Oberdiek ‘Specifying Rights Out of Necessity’ 135.

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within the moral–political universe. Only in this way can what they command be matched with what is normatively required. Only in this way can they act as exclusionary reasons. Were it otherwise, were one to attempt to specify a right without holding in one’s mind the other components of the moral–political universe, one would create and promote an artificial division between the right and a society that is free and democratic in part because of the rights guaranteed to all individuals. Appreciating the relationship between rights and the moral–political universe of a free and democratic society strengthens the right. For example, it has been noted that freedom of expression is ‘rarely exercised by most citizens’,70 with the consequence that delimiting a right solely on account of facts about the right-holder could warrant a narrower scope and content than is traditionally awarded to free expression. Yet, when rights are situated and grounded within a moral–political universe, one realizes that ‘everyone benefits from living in the kind of society where speech is not subject to political or other forms of censorship’, even if the primary beneficiaries of freedom of expression are journalists and political dissidents.71 One’s full appreciation of freedom of expression requires one to go beyond facts about the right-holder alone, and to see free expression as a public good.72 Moreover, when appreciated within the moral–political universe, rights-talk can resist the vices of ‘acceptance of the benefits of living in a democratic social welfare state, without accepting the corresponding personal and civic obligations’.73 Rather, the process of specifying rights can encourage – not inhibit – dialogue and ‘lead toward consensus, accommodation’, and ‘the discovery of common ground’.74 It allows for the explicit acknowledgement that my right imposes something on you. My claim corresponds to your duty. But because I am not alone in exercising this right, I also come to appreciate that my right is also your right; my claim, your claim; your duty, my duty. When that process of practical reasoning has been undertaken and has come to a conclusion, a right may be identified. So specified, the right ‘carries the day in [subsequent] practical reasoning – it determines how one ought or ought not to act’.75 Because rights ‘wait for all the relevant reasons to be accounted 70 71 72

73 74 75

Bellamy Political Constitutionalism 31. Bellamy Political Constitutionalism 31. Bellamy Political Constitutionalism 31; Raz Morality of Freedom 256; Finnis Natural Law and Natural Rights 218. Glendon Rights Talk 14. Glendon Rights Talk 14. See also Finnis Natural Law and Natural Rights 210–11. Oberdiek ‘Specifying Rights Out of Necessity’ 139 n 24.

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for before making an entrance’,76 once they do enter, they are secure and indefeasible without being unaccommodating or disrespecting of our mutual responsibilities one to another. This conception of rights allows one to claim, without embarrassment, that properly specified rights are absolute.

3

Specified rights as absolute

Ever since Hugo Black famously stated, in reference to the First Amendment of the US Bill of Rights, ‘that “Congress shall make no law” means Congress shall make no law’,77 it has been thought to be embarrassing to maintain that rights are absolute. After all, it is often said that Congress enacts many laws ‘abridging the freedom of speech’,78 and even absent that factual assessment, is it not obvious as a theoretical matter that many instances of speech should be abridged? Can one seriously maintain that one is entitled falsely to shout fire in a crowded theatre?79 Indisputably, it seems, freedom of speech cannot be absolute. Those who seek to embarrass proponents of an absolute conception of free speech under the First Amendment take a literal and encompassing definition of ‘speech’, supposing that it means any form of verbal communication. They also ask that we read ‘freedom of speech’ to command complete freedom from regulation of any kind, with the consequence that any regulation of any form of verbal communication is an infringement of the First Amendment. The implausibility of this conclusion is said to reveal the absurdity of the claim to absoluteness, for surely much regulation of much speech is both proper and necessary. To provide otherwise is contrary to good reason. Although it is surely correct that no right promoting an unlimited conception of freedom of expression could be absolute, many take this to be proof against an absolute conception of rights rather than as an invitation to question the premises of their argument. For if it necessarily is the case that no free and democratic society could function if anyone could say anything at anytime, why should one assume that that is what 76 77 78

79

Oberdiek ‘Specifying Rights Out of Necessity’ 135. See Black Constitutional Faith 45. The full text of the First Amendment reads: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.’ This example is, of course, Justice Oliver Wendell Holmes’ in Schenck v. USA 249 US 47 (1919).

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freedom of speech guarantees? Would it not be in keeping with the obviousness of that reality to suggest that it must not be assumed that all governmental regulation is contrary to freedom of speech?80 Should not one place the emphasis on the freedom of speech rather than on freedom and speech taken independently and read so generously that they result in unjustifiable conclusions? Rather, if one accepts that the guarantee in question is not wholly determined and must be specified further, one comes to see how, depending on how one goes about the process of specification, freedom of speech could without embarrassment be understood to be absolute. An account of absolute rights follows from the account of specified rights. For absolute rights are rights which are not open to ‘exceptions’ – so-called ‘justified infringements’. Here, one recognizes that claiming a right to be absolute in force is not the same as claiming that the right is itself limitless or unlimited. It is often objected that a right cannot be absolute because it does not apply to a given situation. Indeed, ‘[t]he confidence with which it can be asserted that scope and obligation are indistinguishable is sometimes astonishing’.81 Yet, it should be obvious that a ‘right can be absolute when applied without being applied to every situation’.82 According to the conception of specified rights, no right is absolute in the sense of being unlimited in scope, but all rights are absolute in the sense of being ‘unconditionally obligatory’ within their proper scope. Take the example of the right to vote. If prisoners do not have the right to vote, then the boundary of the right to vote would be delimited as follows: all citizens not currently imprisoned have the right to vote. Understood as such, one need not conclude that the right to vote is not absolute because prisoners cannot exercise it; rather, one concludes that the right to vote, as defined, is absolute even if prisoners cannot exercise it. As other considerations inform the scope of the right to vote (including age, citizenship, residency), the definition of the scope and content become increasingly complex. Though a complex definition is perhaps less ‘aesthetically pleasing’ than the underdeterminate guarantee that ‘every citizen has the right to vote in an election’, the complexity of a right’s definition should come as no surprise. The popularity of language 80 81 82

A. Meiklejohn ‘The First Amendment is an Absolute’ [1961] Supreme Court Review 245, 261. Frantz ‘The First Amendment in the Balance’ 1424, 1436 (footnote omitted). F. Schauer ‘Speech and “Speech” – Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language’ (1979) 67 Georgetown Law Journal 899, 903.

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like ‘the sphere of a right’ obscures the ‘messiness’ of properly delimited rights. The questions of political morality associated with the limitation of a right are difficult and multifaceted, such that one should be surprised when a right’s limitation is presented in too simple a form. Confronted by such a limitation, one should resist concluding that the right has been defined but is not absolute. Rather, one should conclude that the right remains underspecified and that, once its limitation is properly determined, the right is absolute. But can one maintain the right’s absoluteness in all cases, even in emergencies? Do emergencies not sometimes call for justified infringements? After all, the European Convention,83 the US Constitution84 and the Canadian Charter,85 among other rights’ instruments, all provide for special measures in the case of an emergency. Is this not an illustration that in emergencies, rights (sometimes) give way? I follow Finnis in affirming: ‘No, not in any strict sense’.86 To take his example, if a person’s house is blown up to save a community from the spread of fire, that person’s right to property has not been violated or justifiably infringed; properly understood, the right to property never extended to a rightclaim not to have the house blown up for this purpose, but only (perhaps) to a right-claim to compensation. It must be remembered that the person’s house is blown up to protect the houses of other individuals further down in the fire’s path, and each of those individuals has a claim to be protected from the fire. The person whose house is blown up has a right to property in these circumstances only if the action of destroying that person’s house ‘is pointless because as much will be lost as will be saved, or if our motives are mixed with favouritism or hostility unrelated to the menace of the fire’ or other like considerations.87 Beyond these circumstances, the person’s right ‘do[es] not go (and, properly understood, never did)’.88 83 84

85

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European Convention art 15 (‘Derogation in times of emergency’). US Constitution, Article I, section 8 (‘The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.’). Canadian Charter of Rights and Freedoms, s 4(2) (‘In time of real or apprehended war, invasion or insurrection, a House of Commons may be continued by Parliament and a legislative assembly may be continued by the legislature beyond five years if such continuation is not opposed by the votes of more than one-third of the members of the House of Commons or the legislative assembly, as the case may be.’). Finnis ‘Bill of Rights for Britain?’ 320. 87 Finnis ‘Bill of Rights for Britain?’ 320. Finnis ‘Bill of Rights for Britain?’ 320. On this account, it may be that the concept of ‘derogation’ in emergencies is inapposite and that it may be more appropriate to rely on

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Even if emergencies can be accommodated by the specification of a right, is it not the case that some emergencies will not be foreseen? Indeed, more generally, is it not the case even in non-emergencies that changing circumstances will challenge the specification of a right and, thereby, its claim to absoluteness? Could it not be the case that an infringement of a right should be justified in the light of new circumstances not provided for by a right’s specification? The account of practical reasonableness provided above addresses these questions, for if one accepts that the definition of a right is not context-independent, then rights will be liable to being delimited different ways depending on different contexts. And because contexts are not static, so too must the specification of the right not be static. In consequence, it must be the case that rights are liable to being re-delimited as contexts are re-evaluated. This point can be generalized. Not only is a right properly delimited by reference to a myriad of considerations, but those considerations are not static and evaluated once and for all time. Changing circumstances will mandate a change in the limitation of a right such that the limitation of a right should not be forever fixed. The limitation is contingent on too many features and the constitution of a free and democratic society is liable to fluctuate according to too many changing circumstances to suggest otherwise. Indeed, if it is the case that the determination of the scope and content of a right is never self-evident, then we must allow for revisions from time to time as we reconsider our previous evaluations. Once defined, the boundaries of a right are not hermeneutically sealed and never subject to re-consideration. Rather, re-consideration may (indeed, should) be had from time to time to re-evaluate the limitation of a right. Indeed, nothing in the idea of absolute rights suggests unchanging or resistant ‘to interpretation, change, or to abolition, as the necessities of a precarious world may require’.89 Yet, re-evaluating the limitation of a right remains devoted to re-establishing the boundaries of a right and – critically – not to evaluating, all things considered, how to optimize a right against competing interests each time it is applied to a factual and legal matrix. Following Raz and Oberdiek, one could term

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limitation clauses to revisit the limitation of rights in cases of emergencies. Nonetheless, it is true that emergencies threatening ‘the life of the nation’ can amount to challenging the normal conditions that the claims here defended assume. For an exploration of the state of exception, see C. Schmitt Political Theology: Four Chapters on the Concept of Sovereignty (Cambridge, Mass: The MIT Press, 1985). Meiklejohn ‘The First Amendment is an Absolute’ 253.

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this the dynamic aspect of rights.90 We will see in the chapters that follow how the possibility that the limitation of a right, once established, may be subject to change is one of the most important aspects of a limitation clause from the perspective of constitutional re-negotiating. Before the contingency of the specification of a right is taken to deny its absoluteness, a clarification is in order. At any one stage, a specified right is absolute. Before its limitation is re-considered, a right remains complete and inviolable. Conflicts with other components of the changing constitution of a free and democratic society may challenge the existing specification of a right, but they do not deny its absoluteness in the sense stipulated here. At any one time, one may conclude that the limitation of a right is in need of change but that appeal for change is an appeal to re-specify the right and to provide it again with a complete and inviolable, even if different, limitation. The contingency of a given limitation does not entail that a right is not absolute; rather, it is the constant re-evaluation of the limitation of a right that allows a right to remain absolute as circumstances change over time. Yet, at any one time (and this point bears emphasizing), one makes political and moral judgments on the basis of available reasons and thereby constructs the limitation of rights. The mere contingency of those evaluations and the mere contingency of a right’s specification does not challenge the absoluteness of a right while specified, until re-specified. To recall the importance of ‘choice’ and ‘decision’ in the process of determinatio, ‘[c]hoices last until an incompatible choice is made’.91 Changing the specification of a right is never taken without reflection, especially when the specification is informed by decisions not open to rational critique because not rationally determined. These choices in a sense create a disposition; they are acts of ‘self-determination … that are superseded and replaced only by a subsequent incompatible act or acts of free choice’.92 Before concluding this discussion of absolute rights, one popular assumption must be dispelled: that an account of rights as absolute results in narrower rights-protection than would an account that relies on an all-encompassing account of rights subject to the principle of proportionality. In one sense, it is true that the account of rights being here promoted restricts the opportunities for employing the label ‘rights’; 90

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Raz Morality of Freedom 171; Oberdiek ‘Specifying Rights Out of Necessity’ 153. See also R. Shafer-Landau ‘Specifying Absolute Rights’ (1995) 37 Arizona Law Review 209, 214. Finnis Fundamentals of Ethics 140. 92 Finnis Fundamentals of Ethics 140.

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it does not give rights ‘radiating effect’ nor does it aspire to make them ‘ubiquitous in law’ as does the received approach to the limitation of rights. But to look to this consideration is misleading. Merely identifying a ‘right’ for the received approach yields very little: the right must, in turn, be evaluated as a mere ‘reason’ within practical reasoning. Indeed, it is illuminating that although it is generally assumed today that balancing yields a stronger protection of rights, the general assumption in the debate between ‘absolutists’ and ‘balancers’ in the United States in the mid-1900s was that balancing yielded a weaker protection of rights.93

Conclusion The conception of rights as specified by the limitations that constitute their scope and content is not morally neutral. It provides for a structure of rights that denies them a position of moral inconsequence qua rights and insists on ‘their strength, their urgency, their peremptory character, even their conclusiveness in political argument’.94 However, this conception of rights is not committed to a given moral–political theory for determining what should constitute the scope and content of rights. One needs a moral–political theory to articulate the limitation of the right to life with respect to the death penalty, necessity defence, euthanasia, abortion and so on. Moreover, because the limitation of a right engages one in choice and decision, nothing but the exercise of authority to decide can determine the full specification of a right. For this reason, identifying who should be charged with specifying the rights and freedoms guaranteed in a free and democratic society is a central question. In the next chapter, we will explore the role of the legislature in limiting the openended rights’ guarantees of a bill of rights. 93

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See eg Frantz ‘The First Amendment in the Balance’ 1438; see also I. Porat ‘The Dual Model of Balancing: A Model for the Proper Scope of Balancing in Constitutional Law’ (2006) 27 Cardozo Law Review 1393, 1431. Waldron ‘Introduction’ 14.

5 The democratic activity of limiting rights Introduction Who should be responsible for determining and articulating the limitation of rights? The determination of a right’s scope of content – its limitation – is the conclusion of a process of practical reasoning guided, but not wholly determined by reason. There remains, beyond the domain of reason, a creative aspect to constituting rights by limitation. And the exercise of this choice and judgment is important not only because choices last, but also because – indeed, choices last because – ‘creativity is also self-creative, selfdetermining, more or less self-constitutive’.1 The choices inherent in determining the limitation of a right sets a free and democratic society on a course and ‘into a new world’; one ‘more or less transforms oneself by making the choice, and by carrying it out, and by following it up with other free choices in line with it’.2 Who, then, should be responsible for making the selfconstituting choices involved in constituting rights? Who should be responsible for limiting the rights underdetermined by the constitution? The answer, it would seem, is all of us. The rights are our rights, the free and democratic society our society, such that both should be created in our image. The participation of all in the decision-making process is called for by the principles of political legitimacy. It will be remembered from Chapter 1 that the limitation of a constitutional right engages the political legitimacy of the State. It does so not only in the sense that the improper limitation of a right poses a challenge to the political legitimacy of the State but also, critically, in the sense that the process for determining a right’s limitation should also be consistent with the requirements of political legitimacy. The concern, it will be remembered, is not only with the end-state of the right’s limitation (what limitation is ultimately decided upon), but also with the activity of its determination (how the limitation is ultimately decided upon). According to the principle of democracy, the political authority charged with judging whether the constitution – together with its rights, 1 2

Finnis ‘Commensuration and Public Reason’ 220. Finnis ‘Commensuration and Public Reason’ 221, 220.

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properly delimited – secures the political legitimacy of the State should be citizens collectively. But because citizens require a system of rules, procedures and institutions to allow themselves to speak and collectively to act, we must look to an institution that, even if it ‘comprises fewer than all of us’, nevertheless is one that embodies all of us in ‘the spirit of selfgovernment’.3 That institution is the legislature. In the democratic constitutional State, it is the principal democratic forum and, regulated by rules and procedures that actualize (albeit only in part) the principle of democracy, it allows citizens to participate in law-making, including the law-making that continues the constitutional project of reconciling the principles of political legitimacy through the limitation of rights. The democratic responsibility to determine the limitation of a right cannot, consistent with the principle of democracy, be removed from citizens, delegated to theorists or high priests or forever determined at the constitution’s founding. It must be a judgment exercised democratically, but it must also be a judgment that remains open to being re-exercised democratically. The limitation of rights must, like the constitution that guarantees the rights, remain open to re-negotiating. The limitation of rights must, like the constitution that guarantees the rights, be conceived as an activity. With few exceptions, international, constitutional and legislative charters of rights conceive of the limitation of rights as an activity by declining to determine, in whole, the limitation of rights they guarantee. The presence of a limitation clause both confirms that the rights of the bill of rights are underdeterminate and articulates a process for the further limitation of rights. That process may be more or less spelled out by the limitation clause, but with commanding consensus, it is assumed that the legislature is, in the normal case, the author of the limitation of rights. Now, while the received approach to the limitation of rights assumes the legislature to be the authority of a right’s limitation, it does so only by understanding ‘limitation’ to be synonymous with ‘infringement’, ‘impairment’ or ‘violation’.4 The true specification of the right – the determination of its scope and content – is not, according to the received approach, a task reserved for the legislature. That task is reserved to the court, as is the task of evaluating the proportionality of legislative ‘infringements’ on rights. 3 4

J. Waldron The Dignity of Legislation (Cambridge: Cambridge University Press, 1999) 87. For example, Stephen Gardbaum contends that limitation is interchangeable with ‘infringing’, ‘restricting’ and ‘overriding’ a right: ‘Limiting Constitutional Rights’ 789, 808.

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This chapter continues the challenge to the received approach to the limitation of rights initiated in the previous chapters. It presents the legislature as the political authority mandated by a limitation clause to complete the limitation of underdetermined rights. Being the institution that, albeit through complex and at times uncertain procedures, aims to represent us all, the legislature is the central democratic body in a free and democratic society. The legislature alone is in a position to be both an authority constituted by the constitution as well as an authority with the political legitimacy to re-negotiate the constitution – that is, to (continue to) be a constituent authority. This chapter will explore how a limitation clause invites the legislature not only to specify the underdetermined limitation of constitutional rights, but also to re-determine – that is, to re-negotiate – the limitation of rights as it sees fit. In situating legislative activity in relation to rights as constitutional activity that re-negotiates the principles of political legitimacy, we will first conceive of the legislative forum as a forum of justification – that is, a forum for justifying the limitation of rights. Armed with this conception of legislative activity, we will articulate the relationship between the underdeterminacy of constitutional rights, a limitation clause and legislation. We will then be in a position to evaluate in full the relationship between the limitation of rights and constitutional re-negotiating.

A The legislature as the author of a right’s limitation In a democracy, the legislature is the central site of law-making and legislation is the paradigmatic case of law.5 Nothing but the legislature’s decision constitutes legislation, in the sense that its being does not result from accident or inattention or the development of custom. Legislation is deliberately made – it represents the idea of making law ‘explicitly, through a process and in an institution publicly dedicated to that task’.6 The emphasis on deliberate (and deliberative) law-making reveals how the legislature is an exemplary instance of political authority, for it is both an authoritative, yet self-consciously fallible decision-maker – self-conscious in the sense of aware of the possibility of errors and 5

6

See J. Gardner ‘Some types of law’ in D. E. Edlin (ed) Common Law Theory (New York: Cambridge University Press, 2007) 51. J. Waldron ‘Principles of Legislation’ in R. W. Bauman and T. Kahana (eds) The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006) 22 (emphasis omitted).

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determined to act to correct them. Just as legislation may deliberately be made, it may be un-made or re-made. The legislature is a lawmaker able to act directly and to respond directly to the reasons that inform the practical reasoning that informs law. Nothing within the legislature’s grasp is put beyond reach at any time; everything remains the subject of re-consideration, re-evaluation and legislating anew or for the first time. The design of the legislative forum as a forum for leaving matters open, on an ongoing basis, to democratic re-evaluation coheres well with the idea of an ongoing, democratic re-negotiation of the constitution. We will see how, when conceived as a forum of justification,7 the legislature is not only a possible, but in many respects a necessary author of a right’s limitation. When one moves from the under- and (in some respects) indeterminate rights of bills of rights to the actualized, constituted and implemented rights known to law, one often looks to legislation.

1

The legislative forum of justification

The theory of parliamentary democracy conceives of the legislative forum as a forum of justification.8 Through the exchange of reasons, legislators seek to justify to each other (and to the citizens they represent) why the proposition for legislative action they favour should be adopted by the assembly. The legislature – our speaking-place9 – is a forum for the resolution of questions of political society, including questions relating to what the limitation of a right should be. The legislature’s activity in debating bills and motions, in enacting, amending and repealing law, in questioning the performance of the executive all testify to the legislature as a forum of justification. Carl Schmitt, in examining The Crisis of Parliamentary Democracy, articulated what he termed the ‘intellectual basis of parliamentarism’: a system of thought structured around the principles of discussion and openness.10 For Schmitt, ‘parliamentary arrangements and norms’ – including, 7

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The argument advanced will be in part a re-construction of legislative practice, in part an appeal to what the legislature can – but does not always – do. This account differs from the conception of the legislature as a ‘forum of policy’: cf R. Dworkin A Matter of Principle (Cambridge, Mass: Harvard University Press, 1985) ch 2; Dworkin Taking Rights Seriously 90–100, 294–330. See Oxford English Dictionary (2nd edn 1989 online): parliament, v. ‘to talk or to converse; to confer; to parley’; parliament, n. ‘meeting, discussion, parley’, ‘a period of speaking; a discourse, speech, talk, conversation’. Schmitt The Crisis of Parliamentary Democracy 2.

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‘freedom of speech and immunity of representatives, the openness of parliamentary proceedings’11 – are all grounded in discussion and openness. The principles of openness and deliberation are the philosophical anchors for ‘public deliberation of argument and counterargument, public debate and public discussion’, all constitutive elements of the forum of justification.12 The rich confrontation of reason and the appeal to the idea of reasoned justification are processes that inform the authority of the legislature. Now, Schmitt also noted that ‘[p]erhaps the age of discussion is coming to an end after all’ and, with it, the foundation of parliamentary democracy.13 He identified the following as the ‘most prominent deficiencies … [afflicting] the parliamentary enterprise’: [T]he dominance of parties, their unprofessional politics of personalities, ‘the government of amateurs’, continuing governmental crises, the purposelessness and banality of parliamentary debate, the declining standard of parliamentary customs, the destructive methods of parliamentary obstruction, the misuse of parliamentary immunities and privileges by a radical opposition which is contemptuous of parliamentarianism itself, the undignified daily order of business, the poor attendance in the House.14

Insofar as these deficiencies are accurate, Schmitt was all too right to note that many parliamentary arrangements and norms function today as little more than ‘a superfluous decoration, useless and even embarrassing, as though someone had painted the radiator of a modern central heating system with red flames in order to give the appearance of a blazing fire’.15 But it remains that political legitimacy requires that it be the legislature that actualizes both the principle of democracy and the principle of human rights, that the legislature serve as a forum for the reconciliation of the principles of political legitimacy. Among the many capacities of the legislature, the following speak directly to the conception of the legislative forum as a forum of justification. The legislature, sensitive to ‘a wide freedom of cultural and political debate’, is in a position to take a general view of society to inform practical reasoning, including practical reasoning about rights.16 The legislative assembly is ‘formally structured to ensure diversity, and the modern idea of legislation rests philosophically on an insistence that 11 12 13 14 15 16

Schmitt The Crisis of Parliamentary Democracy 3. Schmitt The Crisis of Parliamentary Democracy 34–5. Schmitt The Crisis of Parliamentary Democracy 1. Schmitt The Crisis of Parliamentary Democracy 19. Schmitt The Crisis of Parliamentary Democracy 6. Finnis Natural Law and Natural Rights 220.

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society, being pluralistic, is in essence incapable of representation by a single voice or by reference to a single set of interests’.17 The general view informed by a diversity of membership is subject to public debate among legislators, who question received positions or make suggestions for change that in turn become the subject-matter of deliberation and exchange. As importantly, the legislature combines a decision-making procedure with the possibility of re-visiting and re-evaluating its conclusions, and possibly deciding anew. No legislative decision is beyond legislative amendment; the legislature may amend its prior conclusions in the light of new reasons, new ideas, new evidence, a new understanding or appreciation of old ideas, and the changing circumstances of a free and democratic society. Legislative activity is constantly alive to the contingency and tentativeness of any legislative destination. In this sense, the dignity of legislation, to adopt Waldron’s expression, is very much a function of the ‘sort of achievement it is’; that is, ‘the achievement of concerted, cooperative, coordinated [and] collective action in the circumstances of modern life’ and, of course, in the circumstances of politics.18 On the basis of the exchange of reasons, the struggle over the justification for or against a proposition for legislative action, the challenge to received viewpoints, and the determination of a chosen course of legislative action, legislation should be understood to be the ‘function of judging just’.19 That is, legislation is the culmination of deliberate law-making; it constitutes the arbitration and adjudication of difference, disagreement and controversy. Because the legislative adjudicative function – the function of purporting to judge justly – is so considerable, the legislative process is designed to promote the responsible exercise of political authority. The enactment process ‘seeks to ensure that the law-making authority enacts law, as far as possible, for the right reasons’.20 It promotes numerous readings of legislative proposals, committee study and various other stages of deliberation so as to allow the reasons supporting and opposing the proposal to surface. Moreover, the enactment process confirms the deliberateness of legislative law-making: ‘the process gives lawmakers control over what is enacted, in the sense that they know what procedures must be carried

17 18 20

Waldron ‘Principles of Legislation’ 25. Waldron ‘Dignity of Legislation’ 156. 19 Waldron Dignity of Legislation 86. A. Kavanagh ‘Original Intention, Enacted Text, and Constitutional Interpretation’ (2002) 47 American Journal of Jurisprudence 255, 274.

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out in order for their intentions, views, and deliberations to be made into law’.21 In this way, the political authority of the legislature is derived not only from its democratic pedigree, but also from its decision-making process. Its openness and deliberative orientation imbues it with an authority derived from the participation (however indirect) of all citizens in the decision-making process. In this sense, one should conceive of the legislature’s law as ‘a set of publicly adopted reasons for adopting or rejecting proposals for action’,22 a theme that will animate the discussion in Chapter 6. However, because the legislature is self-consciously fallible – that is, because the legislature makes its decisions in the course of disagreement among legislators who may come to realize that legislative action has proceeded in error – a legislative destination should not be conceived of as permanent. This is true, perhaps especially so, in designing the limitation of rights. It seems most sensible to maintain that ‘the resolution of all these problems of human rights is a process in which various reasonable solutions may be proposed and debated’ and that, in consequence, the decision-making procedure should be one ‘which is authoritative but which does not pretend to be infallible or to silence further rational discussion or to forbid the reconsideration of the decision’.23 What Raz terms the ‘requirements of critical rationality’ affect ‘the structures of institutions and the processes of decision-making more than they affect the substance of policies’, although they have one important impact on the substance of policies: ‘Other things being equal, policies which are incompatible with the existence and proper functioning of political institutions whose actions and policies are open to re-evaluation and revision should be avoided.’24 One institution participates clearly in this idea of re-evaluation and revision: the legislature. Legislative action is always accompanied by the possibility of a different destination.25 The legislature exercises its authority to legislate or not to legislate; to legislate this way rather than that; to determine by fiat what cannot be determined by reason; and to pursue one reasonable 21 23

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Ibid 275 (footnote omitted). 22 Finnis ‘Commensuration and Public Reason’ 215. Finnis Natural Law and Natural Rights 220. Consistent with the argument of this thesis, the reference to ‘human rights’ should be read as ‘constitutional rights’. J. Raz ‘Liberalism, Skepticism, and Democracy’ in Ethics in the Public Domain: Essays in the Morality of Law and Politics (New York: Clarendon Press, 1994) 86–7. See M. Walzer Spheres of Justice: A Defence of Pluralism and Equality (New York: Basic Books, 1983): ‘In democratic politics, all destinations are temporary. No citizen can ever claim to have persuaded his fellows once and for all.’

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course of action rather than another in the circumstances of politics. It internalizes reasonable disagreement and the burdens of judgment, in part by the doctrine of loyal opposition; that is, the idea that no legislator, no party, no legislative actor is ‘to be regarded as subversive or as disloyal to the society merely on account of his or her public disagreement with some social consensus’.26 This assists in justifying legislative action to the citizenry on whose behalf it is undertaken. For a citizen, disagreeing with the most recent exercise of law-making, will question the new law and ask why it commands obedience despite not commanding the citizen’s agreement; to this the legislature may answer without embarrassment: ‘disagreements (along the lines that [you are] expressing) were aired as fiercely and as forcefully as possible at the time the law was considered’ and, despite these disagreements, indeed after considering these disagreements, it was decided by at least a majority of legislators to enact this law ‘in a fair process of deliberation and decision’.27 The possibility of a change in any legislative course commits legislators to considering the dissenting voices which were not muted by the current legislative destination, even if they (the dissenters) owe allegiance to that destination despite it being tentative and, in their mind, ultimately wrong. For it is the case that in the circumstances of politics which call on political authority to decide in the absence of agreement by all, ‘most people at least some of the time and … many people most of the time’ must expect to be bound by laws the justification of which is questionable (if not altogether absent) from their perspective.28 That is why political society must appeal to political authority and, in the central case, to legislative authority. Such authority is, after all, ‘a technique for doing without unanimity in making social choices – where unanimity would almost always be unattainable or temporary – in order to secure practical (near-)unanimity about how to coordinate the actions (including forebearances) of members of the society’.29 The winners of a legislative vote should not claim that their victory reflects the obvious superiority of their view (though they will have voted on the conviction that their view is better); rather, the political equality of all citizens as represented in the legislature signifies that the success of the yeas over the nays is what explains the current, contingent legislative destination. If it were otherwise and voting was less mechanical, ‘it would raise the very 26 27 29

Waldron ‘Principles of Legislation’ 6. See also Holmes Passions and Constraint 171. Waldron ‘Principles of Legislation’ 25. 28 Waldron Law and Disagreement 247. Finnis ‘Natural Law and Legal Reasoning’ 141–2.

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issue it seeks to resolve by appearing to promote one or other of the views in contention on substantive grounds, and hence become as contentious as them’.30 While suffering from imperfections in design with respect to representation and political equality (imperfections that the legislature undertakes to correct when identified), the legislature remains the only democratic decision-making institution in a democratic constitutional State. As a political authority, the legislature invites respect for its decisions, and not only because of the necessity of arriving at a destination on this or that question for which an answer is necessary. The respectworthiness of a given determination may be gained, in part, by the provision for the ‘constant submissibility to an adequately democratic and influential discursive process of critical re-examination’.31 All citizens have played a part in the collective decision, however indirectly. The law is their law, the determination of the right’s scope and content their determination. This participation ‘generates a sense of moral responsibility on the part of citizens, obliging them both to respect the view of their fellows and to abide by the majority view’, even as they continue to disagree with it.32 The model of legislative law-making illustrates the exercise of political authority, which is ‘binding (though not absolutely) and determinative for legal reasoning (though not absolutely determinative) precisely because (though not only because) it has been made by relevant persons in relevant circumstances’, but also because our free and democratic society needs such exercises of authority to resolve our disputes and to resolve ‘coordination problems both now and for the future, in a consistent and fair fashion’.33 This instance of political authority is particularly apt for resolving the complex, contingent, and controversial questions that surround rights and the determination of their scope and content. To say this, as we will see, is not only to contradict the received approach to the limitation of rights, which conceives of the legislature as the antagonist in the story of rights, but also to bring to light the countless instances of legislative protection, promotion and definition of rights in legislation. 30 31 32 33

Bellamy Political Constitutionalism 226. Michelman ‘Human Rights and the Limits of Constitutional Theory’ 63, 74. Bellamy Political Constitutionalism 97. Finnis ‘On “The Critical Legal Studies Movement”’ 21, 24 (emphasis in original footnote omitted).

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2

Rights and legislation

It is often contended, and often with exaggeration, that the legislature is not, or is rarely concerned with rights. This assumption has acquired prominence on account of an argument adopted by, and adapted from Dworkin.34 According to this argument, ‘the majority’ (often used indiscriminately as short-hand for ‘the legislature’) acts on the basis that it is entitled to act on the majority’s view, simply because it is the majority’s view. It is assumed that the justification for a legislative act rests, almost exclusively, on the ground that it is the act of the majority. The popularity of this assumption is no doubt fed by the related assumption that as between court and legislature, the court is a (or, as it is sometimes put: the) ‘forum of principle’ and justifies its decisions on the basis of rights. By contrast, the legislature is a ‘forum of policy’ and – though not unconcerned with principle – justifies its decisions on the basis of the ‘general welfare’, the ‘public interest’, the ‘collective good’ or other like labels. The distinction between principle and policy is related to the assumption that rights trump policies, or at least some of them. These misguided assumptions can be found operating in the received approach to the limitation of rights, where it is contended that the enumerated rights of an international, constitutional or legislative charter of rights should be ‘broadly construed’ by the court and ‘broadened by implying unstated rights’, whereas the limiting grounds that the legislature will act on should be ‘read narrowly, without expansion by implication, and allowed application only for “pressing social need”’.35 These assumptions should be challenged. The legislators that comprise ‘the majority’ on a given legislative proposal should not cast their vote (if it is even possible that they could) because they ‘count the majority’s moral convictions about how other people should live’36 as the ground for political decision. Nor should they think that a legislative act ‘can be justified only by appealing to the majority’s preference about which of their fellow citizens are worthy of concern and respect’.37 The legislators that compose the 34

35 37

I say ‘adapted’ together with ‘adopted’ given that although the idea that the legislature is a forum of policy is adopted from Dworkin, the assumptions that follow from this idea are not all to be attributed to Dworkin. For example, Dworkin has maintained: ‘I do not mean, of course, that only judges should discuss matters of high political principle. Legislatures are guardians of principle too, and that includes constitutional principle’ (Dworkin Freedom’s Law 31 (footnote omitted)). Finnis ‘A Bill of Rights for Britain?’ 303, 315. 36 Dworkin A Matter of Principle 68. Dworkin A Matter of Principle 68.

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majority on any given legislative proposal (should) act because they think that something – some matter of importance requiring legislative action (or inaction) – is at stake. They do not (and indeed, should not) appeal to ‘the majority’s preferences or convictions’. Indeed, it is doubtful that there is, in the normal case, any such body that constitutes ‘the majority’ on all (or many) issues over any period of time. The complexity of the citizenry in many free and democratic societies very much suggests that ‘the majority’ is in fact shifting coalitions of minorities.38 Now, on any one issue, there will have to be a majority (even if that majority is only identifiable from one perspective, such as: the majority of legislators voted against this proposal). The legislature proceeds (or not) because a majority of its members indicate that it wishes a matter before the assembly to proceed (or not). On any issue or matter, there will have to be a majority which means that some minority will be losing out.39 However, over any two issues, there will likely not be a single constant majority, but rather two differently constituted majorities of more or less members, with the consequence that one may not be in a position to anticipate, in advance of a result, how ‘the majority’ will vote on a given matter. That evaluation will, in many cases, be possible only after votes have been cast (or yeas and nays recorded). For a legislator, the ground for a political decision should always be its justification in a free and democratic society; indeed, ‘what the majority is believed to think does not, characteristically, figure much (let alone exclusively) on the grounds by which’ a vote is cast.40 The legislator, aided by debate in the forum of justification, should consider the reasons for and against the proposal, evaluate them against the standard of public reason, and cast a vote on that basis. A legislator who seeks to inform the casting of a vote on the basis of ‘what the majority thinks’ engages in a degradation of legislative responsibility. When legislators engage with the reasons speaking to and against a legislative proposal and evaluate them against the standard of public reason, they should appreciate that while rights are properly conceived of as trumps – or more accurately stated: as ‘claims to exclude, override, or be immune from, some competing interest or claim of one or many other persons’41 – rights only acquire 38

39

40 41

See Bellamy Political Constitutionalism 244: ‘most majorities are actually winning coalitions of minorities, with legislative programmes reflecting a compromise between them’. To this truth, one could add that ‘some losers deserve never to win’: Bellamy Political Constitutionalism 255. Finnis ‘A Bill of Rights for Britain?’ 310–11. Finnis ‘A Bill of Rights for Britain?’ 318.

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this status after the process of practical reasoning has been carried to conclusion. Often, rights cannot be identified otherwise than as underdeterminate and in need of limitation prior to legislative debate, such that one cannot interrupt and prematurely bring deliberation to a close by playing a trump. Rather, the forum of justification is often characterized (even if not always explicitly) by different arguments about rights, about how the open-ended guarantees in a constitutional, international or legislative charter of rights should be actualized; indeed, how they should be limited. And because rights will figure in the legislative process, indeed because rights are often constituted by legislation specifying their scope and content, it seems most difficult to maintain that rights will, in turn, trump legislation. One often neglects the fact that ‘it is ordinary legislation that details what rights we can claim in particular circumstances, indicates precisely who is entitled to a given benefit … and lays down when and how it can be requested and provided’.42 These details are perhaps less inspiring than the grand declarations one finds in international, constitutional and legislative bills of rights, but they are what constitute, implement, and actualize the right; in short, they are the right’s limitation. While many will disagree with the specification of a right in legislation, it is quite another matter to maintain that – instead of initiating again the legislative process for re-specifying a right – one can simply appeal to underdeterminate rights to trump legislation, as though it could be possible that ‘trumps trump trumps’.43 Absent their specification in much legislation, rights lack the jural structure that identifies relationships, duties and associated rights. With few exceptions,44 charters of rights provide only the simplest of jural structures, as in: A has a right to φ. This formulation (represented in the familiar guarantees that ‘everyone has freedom of expression’, ‘every citizen has a right to vote in an election’) cannot be taken to constitute a jural structure in itself, for it rarely (if ever) implies that there is no class 42

43 44

Bellamy Political Constitutionalism 17, see also 244. The same point is made, holding different free and democratic societies in mind, in Sajó Limiting Government 286. Bellamy Political Constitutionalism 37. The First Amendment of the US Bill of Rights is an interesting counterexample, insofar as it identifies a duty-holder and not a right-holder: ‘Congress shall make no law respecting an establishment of religion … or abridging the freedom of speech, or of the press …’. Here, it is class A that must be limited, given that the Constitution purports to identify class B (but consider how the US Supreme Court has interpreted the Constitution to extend class B to state legislatures as well).

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of persons B that is under an obligation or duty to some other class of persons in relation to φ-ing; nor does it imply that the right obtains in all circumstances without qualification. Rather, what is usually implied by the absence of jural structure is that the limitation of the right is incomplete and must be provided for so as to establish a jural structure. Limitation clauses make explicit this necessary completion of a right’s jural structure. They highlight how the limitation of the right ‘everyone has freedom of expression’ is found not in the open-ended right’s guarantee itself, but rather in the different modes of legal regulation (criminal sanctions for hate propaganda, civil guarantees against defamation, political campaign contribution limits, licensing for commercial advertising, etc), the different instances of expression that are protected or forbidden or regulated (political speech in the legislature, media and artistic expression, subversive speech, pornography, perjury, tobacco and alcohol advertisement, holocaust denial, etc), the regulation of the medium, time and place of expression (private conversation, public expression with a loudspeaker, protests and marches, newspapers, magazines, television broadcasts, film, etc) and so on. These limitations which constitute the right and provide for its (sometimes multiple) jural structure(s) are found, in the normal case, in legislation.45 Most legislation articulates three-term relationships between the class of persons A, the class of persons B, the act or act-description φ, and the applicable circumstances C within which the relationships hold. For example, criminal law is often conceived of as forbidding A to do φ to B in circumstances C. In civil law, A may be liable to B for doing φ in circumstances C. And in administrative law, A may be permitted to φ in relation to B if circumstances C have been satisfied. This is but a sketched account (some laws are obviously more46 and others less47 complex), which omits the many associated relationships when the primary relationship is disrespected (what may B do to A when A performs φ in circumstances not-C). But the central idea is that the details that provide for the jural structure of rights are often found in legislation and almost never found in bills of rights. The full 45

46 47

In common law jurisdictions, they are also found in the case law developed by the courts, although this poses a challenge to the principle of democracy insofar as the decisions constituting the right are taken out of the control of citizens (and their representatives) and placed in the hands of non-democratic actors (the judges). Consider states of mind in criminal law (intention, recklessness, criminal negligence). Consider two-term laws, as in: A may only φ (eg put out the rubbish bins) in circumstances C (eg on Tuesdays).

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specifications of rights are found in the statute books enacted by the citizens’ representatives after due consideration and debate in the forum of justification. The legislature, on this account, is a necessary actor in the implementation and actualization of constitutional rights which would remain abstracted from the society that is free and democratic in part because the legislature undertakes the difficult, contested and contingent task of limitation. What, then, is the relationship between legislation, rights, and the limitation clause that mediates between them?

B

Constructing the limitation of rights

It is sometimes thought that the practical reasoning process from the underdetermined guarantee ‘A has a right to φ’ to the complete limitation of a right is one of interpretation. There is no doubt that the idea of interpretation is all present in legal (and constitutional) practice. It serves as a placeholder for discovering meaning, supplanting meaning and changing meaning, and encompasses the entire activity from the first premise that is the text setting out the underdeterminate right to the end of the reasoning process in all cases. On this view, everything is a matter of interpretation; interpretation never runs out, it occupies the whole field. Yet, this misconstrues the interpretative task, which is properly conceived as the discovery of meaning that, in some sense, already inheres in text. In the case of underdeterminate rights, only some – but by no means conclusive – meaning inheres in the guarantee ‘A has a right to φ’. That partial meaning partially limits the right, but because interpretation provides no further delimitation of the scope and content of the right, something other than interpretation must be called upon to complete the limitation. That task and the answer for greater specificity are satisfied by what may be called construction; that is, the constructing of meaning that interpretation leaves open.48 We will see that the construction of the limitation of rights begins where the interpretation of the partial limitation provided by the charter of rights ends. It is this process of 48

The distinction between ‘interpretation’ and ‘construction’ is employed by Keith E. Whittington (Constitutional Interpretation and Constitutional Construction: Divided Powers and Constitutional Meaning (Cambridge, Mass: Harvard University Press, 2001)) and Randy E. Barnett (Restoring the Lost Constitution: The Presumption of Liberty (Princeton: Princeton University Press, 2004)).

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constructing the limitation of rights that a limitation clause makes explicit. But before exploring the idea of construction further, let us turn to the prior task of identifying what a bill of rights provides for – that is, what is discoverable by interpretation. It is what interpretation leaves open that a limitation clause aims to complete. And it is that latter process that leaves a constitution open for re-negotiating.

1

Degrees of limitation, internal limitations and further limitations

Talk of limitation might suggest that there are only two instances of limitation: a right is either (wholly) unlimited or (fully) limited. This erroneous characterization should be avoided. It is quite impossible to conceive of a right as wholly unlimited. Any conception of a right necessarily grasps at some content, and as soon as that content is held in one’s mind, a limitation, even if tentative and incomplete, is already established. For example, to conceive of a ‘right to dignity’ at even the most abstract level is to form, in one’s mind, a general idea of the concept of dignity and, concomitantly, a general sense of the scope and content of the right to dignity, albeit one that remains nebulous and subject to much refinement. Nevertheless, this act is itself constitutive of (part of) the right’s specification. Rights are not either limited or unlimited as a binary matter, but rather situated along a range of degrees of limitation, from the lesser to the more specified. This phenomenon is present in charters of rights themselves, where some rights are delimited only to a minimal extent and others are delimited to a considerable degree. This distinction has important consequences for the role of a limitation clause and the legislature’s mandate to complete the process of limitation begun, but not completed by the authors of the bill of rights. A review of some of the rights guaranteed by the European Convention on Human Rights illustrates the varying degrees of limitation, ranging from (relatively) unspecified fundamental freedoms to (relatively) specified accounts of the right to be free from forced or compulsory labour. Articles 9 to 11 of the European Convention provide that everyone has ‘the right to freedom of thought, conscience and religion’, ‘the right to freedom of expression’, and ‘the right to freedom of peaceful assembly and to freedom of association with others’. These canonical affirmations of the fundamental freedoms are largely unspecified. They are not without specification, however, as is illustrated by the use of the more

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expansive term ‘expression’ rather than ‘speech’,49 the pairing of ‘religion’ with ‘conscience’ and ‘thought’, and the qualification ‘peaceful’ before ‘assembly’. However, the question whether these freedoms guarantee the right to perjure oneself, to associate for the purposes of criminal activity, to enter into a religious polygamous marriage, or to refuse military service on grounds of conscience is not answered in or by the Convention itself. The limitation of the fundamental freedoms is incomplete; it must be carried out further in order to conclude whether these activities are among the instances of activity guaranteed. The European Convention goes some way and indeed further in many respects than other bills of rights,50 yet nevertheless not very far, in the process of limitation. The interpretative task will take one only so far, leaving the rest to the further limitation of rights. Contrast these relatively unlimited freedoms with the right to be free from forced or compulsory labour. Article 4 of the European Convention provides the following relatively detailed specification of this right: (2) No one shall be required to perform forced or compulsory labour. (3) For the purpose of this article the term ‘forced or compulsory labour’ shall not include: a. any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention; b. any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; c. any service exacted in case of an emergency or calamity threatening the life or well-being of the community; d. any work or service which forms part of normal civic obligations. The formulation of this right is much unlike the formulation of other rights in charters of rights. It approximates a level of specification usually reserved to legislation, not to charters of rights. The drafters of the 49

50

It bears underlining that there is nothing inconsistent with the suggestion that the more encompassing term ‘expression’ is a limitation of this fundamental freedom: it gives the freedom content and determines (part) of its meaning and thus constitutes a limitation, albeit a more expansive limitation than would the term ‘speech’. For example, Article 9 continues to specify that ‘this right includes freedom to change his religion or belief and freedom’; Article 10 specifies that ‘this article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises’; and Article 11 provides further that the freedom ‘includ[es] the right to form and to join trade unions for the protection of his interests’.

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European Convention saw fit to specify (and the constituent authorities saw fit to adopt) that work performed following lawful detention; military service including service by a conscientious objector where such objections are not recognized; service required to save a community; and the normal civic obligations of living-together-with-others shall not constitute forced or compulsory labour for the purposes of the right. But the drafters of the European Convention need not have proceeded in this way. They could have omitted the specifications provided in section (3) of Article 4. This formulation would have left unspecified, at the level of the European Convention, the many limitations currently provided for. Now, the process of limitation for the right to be free from forced or compulsory labour – though carried out to a considerable degree – nevertheless remains incomplete. The European Convention leaves unanswered (and therefore unspecified), among other questions, how and who identifies what constitutes ‘ordinary’ and ‘normal’ and ‘emergency’ circumstances; the extent of military service required during peacetime; and which obligations are properly ‘civic’. The foregoing examples aim to illustrate the range in the degrees of limitation provided in charters of rights. The rights of a constitutional, legislative or international charter of rights are thus delimited to different degrees in the rights’ instrument itself, leaving more or less, depending on the right, to the process of further limitation that each right should undergo and that is acknowledged and called for by a limitation clause. In this sense, it is difficult to understand why the received approach to the limitation of rights speaks of only some rights as ‘internallylimited’.51 The realization that rights are in part delimited by a charter of rights itself and in part to be delimited further allows one to question the popular conception that only some rights are ‘internally-limited’. Let us take two common candidates for ‘internally-limited rights’ to illustrate this misconception: ‘Everyone has the right to be secure against unreasonable search or seizure’ and ‘Everyone has the right not to be arbitrarily detained or imprisoned.’ It is maintained by much scholarship and jurisprudence that the words ‘unreasonable’ and ‘arbitrarily’ internally-limit the rights against search and seizure and against

51

See eg Greer The Exceptions to Articles 8 to 11 of the ECHR 5, where ‘internal limits’ are likened to ‘explicit restrictions’ and ‘“express definitional exclusions” attached to specific articles’.

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detention and imprisonment, respectively. This framework misrepresents the process of limitation. To maintain that the rights in question are internally-limited is either to affirm that which is trite or to confuse the relationship between rights and their limitation. It is trite to affirm that the rights (like all rights) are internally-limited; indeed, the choice of words ‘search and seizure’ (rather than other plausible candidates, such as ‘privacy’) and ‘detained or imprisoned’ (rather than other plausible candidates, such as ‘interrogated’) itself begins the process of limitation. The words ‘unreasonable’ and ‘arbitrary’ are merely one other instance of specification, which could have been – but was not – left to be determined by the process of further limitation framed by the limitation clause. The expression ‘unreasonable’ provides one plausible specification of the right against search and seizure. It thus delimits the right in a manner that is ‘internal’ to the article or section of the bill of rights guaranteeing the right, but only in the banal sense that the limitation is found in the text of the bill of rights rather than provided for through the limitation clause. Hence, one way to understand the affirmation that the rights against (unreasonable) search and seizure and against (arbitrary) detention or imprisonment are internally-limited is trite – all rights on this reading are internallylimited to some extent. Indeed, all rights-guarantees employ a given vocabulary rather than another, and in so doing (by necessity) limit rights ‘internally’. Rights which currently bear the label ‘internallylimited’ might be less underdetermined – that is, more delimited – than other rights, but this is a question of degree and not of kind.52 Given that the label ‘internally-limited’ is reserved for some rights but not for others, one is led to the supposition that the label is not employed merely in a trite sense: some other motivation is at play. The other reading of internally-limited rights is that ‘limits’ – understood here in the unhelpful and erroneous sense of ‘infringement’ or ‘violation’ – are internal to the provision and so are not subject to a proportionality or balancing evaluation. This suggests that the ‘true’ right is the right ‘against search and seizure’ without qualification. This would suggest, in turn, the patently false claim that even a ‘reasonable’ search and 52

For some, however, ‘internal limitations’ are ‘about scope and definition’ whereas ‘external limitations’ (as authorized by a limitation clause) are about ‘the power of a legislature to … override the right as defined’: Gardbaum ‘Limiting Constitutional Rights’ 795 (emphasis added). For reasons reviewed in Chapter 4, all limitations (whether internal or external to the charter of rights) are constitutive of the right.

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seizure would violate the right, such that the word ‘unreasonable’ authorizes a violation of the right against search and seizure. This understanding of limitations as prohibitive rather than as constitutive and enabling misconstrues the proper understanding of ‘limitation’ as a definition and determination of rights. Understood in this way, the expression ‘internally-limited rights’ discloses an erroneous understanding of the relationship between rights and their limitation. The relationship between the limitation of rights as provided for in a charter of rights itself and the limitation of rights provided for subsequently by legislation discloses that limitation clauses authorize the further limitation of rights. Because of the constitutional status of the expressly articulated limitations of rights in the constitution, one should accept those limitations (as distinct from those that may be provided by legislation) as being ipso facto reasonable; they are, by constitutional stipulation of the text of the constitution, limitations that can be demonstrably justified in a free and democratic society.53 For example, the Canadian Charter specifies the equality guarantee such that it ‘does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups’.54 This limitation of equality, together with the other limitations provided for at the level of the constitution, begin to flesh out the specification of the right and, with it, the constitution of a free and democratic society. The further specifications of rights and, with them of the free and democratic society in which they are guaranteed, are more contingent – they are provided for, in the central case, by legislation which may be amended or repealed as the legislature sees fit. This is one of the defining features of construction.

2

Construction beyond interpretation

Despite the equivocation of contemporary uses of interpretation, the task of interpretation differs from innovation. It is an ‘inescapable feature of interpretation’ that it ‘represents a search for meaning already in the text’, a sort of ‘discovery’ which, albeit one that ‘may be complex and require good judgment by the interpreter’, nonetheless is aimed at 53

54

Subject, of course, to constitutional amendment, although for reasons reviewed in Chapter 1, amendments to a constitution tend to be less available than amendments to legislation. Canadian Charter of Rights and Freedoms, s 15.

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uncovering ‘something that has plausibly been found in the original text’.55 Interpretation is not a creative undertaking. It discovers meaning, but does not create it; it assumes what is, rather than determines what should be; it is oriented towards conserving meaning, not to creating it. In relation to rights, interpretation is the task of determining what limitations are provided for by the charter of rights – the so-called ‘internal limitations’. Beyond this, the task of interpretation is not to continue the process of limitation and to masquerade further limitations as somehow ‘discoverable’ by interpretation. When the discovery of the internal limitations is completed, interpretation quite simply becomes exhausted. The resulting lack of specificity in a right’s scope and content of course calls for greater specificity, but it cannot call for interpretation. This call for greater specificity is satisfied by what may be called construction. Construction is a necessary feature of charters of rights and a ‘supplementary theory’ of meaning where interpretation proves insufficient.56 The meaning of rights under charters of rights is determined in part by interpretation, but for the most part by construction. Interpretation always comes first: it determines the need for and the boundaries of construction. The degree of specificity or determinacy of a right’s guarantee is itself revealed by the interpretive undertaking; it resides in the right’s textual guarantee and its interpretable meaning. But in those cases where a right’s guarantee provides insufficient meaning to be discovered by interpretation, the meaning of a right’s scope and content must be supplemented with construction. Construction elaborates the limitation of a right where interpretation cannot; it ‘supplements other methods of determining constitutional meaning’ by providing ‘[s]omething external to the text’ to allow ‘the text to have a determinate and controlling meaning within a given governing context’.57 In the case of charters of rights with their canonical affirmations of ‘A has a right to φ’, it is invariably the case that the limitation of rights will be constructed, excepting the minimal ‘internal’ limitations discoverable by interpretation. Here, construction provides (and a limitation clause makes explicit the call for) ‘conditional meaning from an indeterminate text’ by supplementing the text with something ‘outside itself’.58 55 56

57 58

Whittington Constitutional Interpretation 6. K. E. Whittington ‘The New Originalism’ (2004) 2 Georgetown Journal of Law and Public Policy 599, 612; Barnett Restoring the Lost Constitution 118. Whittington Constitutional Construction 3, 6. Whittington Constitutional Construction 7–8, 207–8.

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Properly understood, an international, constitutional or legislative charter of rights does not prohibit such constructions; indeed, the underdeterminacy known to many bills of rights ‘is one of the prices we (or the framers) pay for a writing that uses abstract principles in place of specific rules’, although ‘it is also one of the well-known virtues of this particular writing’.59 One should not consider constructions to be a flaw in the process of constitution-making or in constitutional design. Even absent a limitation clause, such constructions would be possible (because necessary). But limitation clauses make explicit the need for constructions as well as provide some guidance for its exercise. Where open-ended formulations are used, a charter of rights provides only a partial settlement of the rights’ limitations and leaves the resolution of disputes as to what the further limitations should be to be guided – but not determined – by the (partial) specification provided for by the charter of rights itself. The task of completing the rights-project is left to later political authorities (and generations) and presents the constitution as an activity. Constructions are completions of the constitutional undertaking without being part of the original founding and indicate that not all constitutional change needs to be ‘reduced to an amendment framework’.60 They are part of the activity that completes the constitutional architecture and, as activity, may be revisited and re-constructed at any time. Because undertaken by the legislature, constructions are forever within the democratic grasp of citizens, forever subject to re-consideration. The further limitation of constitutional rights thereby continues to be an ongoing and democratic activity of re-negotiating the constitutional rights-project. Despite their necessary role, constructions are not ‘analogous to textual amendments’,61 both in the sense that they may not change the interpretable meaning of the rights’ textual guarantees and in the sense that they do not achieve the same status as amendments. It is a precondition of constructions that ‘parts of the constitutional text have no discoverable meaning’, such that a construction of meaning ‘cannot claim merely to discover a pre-existing, if deeply hidden, meaning’ within the charter of rights.62 Now, the distinction cannot be carried so far as to suggest that constructions bears no relationship to the 59

60 61

62

Barnett, Restoring the Lost Constitution 120 and R. E. Barnett ‘An Originalism for Nonoriginalists’ (1999) 45 Loyola Law Review 611, 645. Whittington Constitutional Interpretation 218. Whittington Constitutional Interpretation 218; Barnett ‘An Originalism for Nonoriginalists’ 646. Whittington Constitutional Interpretation 7, 5.

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interpretable text. For in penetrating ‘beneath the surface of the text’ in order to construct the meaning of the right’s (further) limitation, one must in turn ‘re-emerge through the text’.63 Construction is possible where interpretation is exhausted; yet, to remain a task of fulfilling and supplanting meaning, the ultimate measure of a construction must be its consistency with that which is interpreted. No contradiction between construction and interpretation is permissible. Even if interpretation ceases when confronted with underdeterminacy, it continues to guide construction. Whereas interpretation is ‘essentially legalistic’ – that is, the lawyer’s task of employing the techne of legal reasoning – construction is ‘essentially political’; it ‘employs the “imaginative vision” of politics rather than the “discernable wit” of judicial judgment’.64 It is thus fitting to look to the legislature for the construction of the limitation of rights not discoverable by interpretation. And we will see that limitation clauses tend to provide that the legislature will, in the central case, be the author of a right’s further limitation.

3

The legislature’s construction of rights

The limitation clauses of most international, constitutional, and legislative bills of rights require that the further limitation of rights be ‘prescribed by law’. Among the various formulations grasping at the same (or similar) idea, one also finds ‘in accordance with law’, ‘in virtue of laws’, ‘as established by law’, ‘subject to any general law’, ‘provided by law’, ‘according to law’, ‘under national or international law’, ‘according to the generally recognized principles of law’, ‘pursuant to law’, ‘provided by law’ and ‘imposed in conformity with the law’.65 The received approach to the limitation of rights considers this requirement to be a condition precedent (in the sense of a further hurdle) before the legislature may ‘infringe’ or ‘violate’ a right. It is said that the legislative ‘interference’ with a right must have some basis in the law, that ‘the law must be adequately accessible’, and that the law must be ‘formulated with sufficient precision to enable the citizen to regulate his conduct’.66 While 63 64 65

66

R. E. Barnett ‘Underlying Principles’ (2007) 24 Constitutional Commentary 405. Whittington Constitutional Interpretation 7, 5. See O. M. Garibaldi ‘General Limitations on Human Rights: The Principle of Legality’ (1976) 17 Harvard International Law Journal 503, 533–4. See Sunday Times v. United Kingdom (1979) Series A no 30 (1979–1980) 2 EHRR 229 [47], [49]; Silver v. United Kingdom (1983) Series A no 61 (1983) 5 EHRR 347 [86], [87], [88].

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these desiderata of the rule of law are doubtless correctly associated with the idea that a limitation should be ‘prescribed by law’, they fail to grasp a central feature of that very requirement. The limitation of a right should be authorized by law not merely in the sense that the law delegates the responsibility for articulating the limitation to a person, committee or other body, but rather in the more exacting sense that the law is (that is: constitutes) the right’s limitation. In other words, the law must pre-scribe the limitation of a right in advance of any particular instance in which the right (as limited) is applied. Now, it is true that the expressions ‘prescribed by law’ and ‘determined by law’ differ somewhat from the expressions ‘pursuant to law’ and ‘according to law’ insofar as the former embody the idea of ‘a higher degree of determination’.67 Moreover, the French versions of the limitation clauses of the European Convention and the Canadian Charter refer simply to ‘une règle de droit’ – that is, to a rule of law, similar to the South African Constitution’s reference to ‘a law of general application’ – which need not connote any degree of determination. However, while this softer language is unfortunate, these differences are ultimately of no matter, given that the idea is sufficiently captured by the idea that a limitation of a right should be provided for in advance of the evaluation of a rights-claim. Among the law-making authorities of a democratic constitutional State, the legislature by definition legislates in advance (pre-scribes) of the application of law, a task left to the judiciary and the administration. In a democracy, the legislature is the central legitimate source of lawmaking and is the paradigmatic case of deliberate law-making. No doubt, courts also consider arguments and counter-arguments and at common law, the judgment of a court is ‘law’ and a common law rule has been so considered under the received approach to the limitation of rights. But it remains that the primary point of judicial adjudication is to settle a dispute and not to change or to prescribe law. The development of common law is a consequence (and in many respects justified only as a consequence), not the primary purpose, of the settlement of disputes. The primarily legitimate author of law in a democracy is the legislature; only the legislature has, as its distinct function, the political authority to determine what law shall stand for the community. In this way, one may read ‘prescribed by law’ as largely equivalent to ‘prescribed by the legislature’. 67

Garibaldi ‘General Limitations on Human Rights’ 556.

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The process of constituting rights by limitation engages the complex process of practical reasoning reviewed in Chapter 4. The legislature, composed of a multitude, is sensitive to this process and to the different considerations that must inform the constitution of a right’s limitation. Moreover, the legislature, recognizing what further information or opinion may be required beyond what its immediate membership can provide, may invite witnesses to testify before committees and may commission reports and studies to inform further its evaluation of the limitation of rights. It may delay making a decision until such further information is available and a reasonable judgment is possible, or it may make a decision in the absence of full knowledge with the agreement that the decision will be revisited in future. Once the legislature has informed the practical reasoning that will inform the basis of the scope and content of a right, legislation marks the conclusion of that process and, in turn, constitutes the right’s limitation. For this reason in part, it is important ‘to maintain a distinction between deliberation (which we value for its diversity and adversarial character) and enactment (which we value for its determinacy and univocality)’.68 The deliberative stage aimed at determining what the limitation of a right shall be is structured to operate in the circumstances of politics. Legislators are encouraged to speak for and against a legislative proposal as they see it and witnesses and studies will be called in to lend support to their positions. But once the legislature has spoken and adopted a given limitation, that is ‘what finally is to prevail in our society, and that means that our laws present themselves as already taking account of everything that might be important about the matters they govern’.69 Once legislation is adopted, one transitions from the construction of the right’s limitation left open by the charter of rights to the interpretation of what the legislation now prescribes for the right’s limitation. The construction, which is contingent and tentative from the bill of rights’ perspective, nevertheless determines what shall be during its tenure. One thus transitions from the open moral–political reasoning that informs the construction of the right’s limitation to the technical–legal reasoning of interpreting what the legislation prescribes. When properly identified, a right’s limitation satisfies ‘the law’s distinctive devices: defining terms, and specifying rules, with sufficient and necessary artificial clarity and definiteness to establish the “bright lines” which make so

68

Waldron Law and Disagreement 40.

69

Waldron ‘Principles of Legislation’ 20.

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many real-life legal questions easy questions’.70 Legislation which provides for a right’s limitation purports ‘to provide the citizen, the legal advisor, and the judge with an algorithm for deciding as many questions as possible – in principle every question – yes (or no), this course of action would (or would not) be lawful’, and so on.71 Its aim is to substitute the open first-order moral–political reasoning that informed the limitation of a right with a limitation, that is, a conclusion to the process of practical reasoning and construction. This right’s limitation now acts as a second-order reason informing legal reasoning, such that the task of the administrator of the law (and thus, the prescribed right’s limitation) is to determine what that limitation provides for; the administrator’s task is not to construct a limitation as though none existed. Now, one may object and remind oneself that the legislature – unlike the philosopher – does not, in the normal case, take it upon itself to engage completely with the limitation of a right. It rather seeks to delimit a right by legislating certain aspects of the limitation of that right, from time to time. As a result, the limitation of a right, taken as a whole, may be incomplete at any given time, insofar as legislation may fail, in practice even if not necessarily in principle, to ‘present itself as already taking account of everything that might be important about the matters it governs’. Now, it is true that the legislature (in the normal case) does not engage with the limitation of a right ‘in one go’, so to speak. Take the example of the right to equality. The legislature will delimit the right to equality with regards to discrimination in the workplace, the definition of eligible spouses for pension plans, the definition of civil marriage and so on. It will do so at different times, in different legislative instruments. It will, in all likelihood, not enact a comprehensive Right to Equality Act. The limitation of a right may never be wholly complete, it seems, since the legislature will not address all aspects of the specification of a right in a single legislative enactment. Beyond the possibility of incomplete limitations, there is also the possibility of not-perfectly-compatible limitations if the process of specification is undertaken in stages, over time. But nothing here denies the possibility of a Right to Equality Act.72 Some legislation is organized more or less primarily around the subject matter of a right. For example, the Elections Act known (under one title or another) to all free and democratic societies constitutes (in many cases) the legislature’s determination of the limitation of the right to 70 71 72

Finnis ‘Natural Law and Legal Reasoning’ 142. Finnis ‘Natural Law and Legal Reasoning’ 142. See eg Equality Act 2006 c 3 (United Kingdom).

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vote and the right to present oneself as a candidate for membership within the legislative assembly. It sets out decisions and choices regarding such matters as the role and responsibility of an independent elections officer; the registration and identification of electors in advance of (and at) polling day; the revision of the lists of electors from time to time; the qualification, nomination and obligations of candidates; the voting system as well as the place of voting for each class of electors (including special voting rules); the residency and citizenship requirements for electors; the regulation of political contributions by individuals and by non-voting entities such as unions, corporations and foreigners; the regulation of third-party participation, such as advertising for or against a candidate, party or issue; and other like matters. Each one of these matters constitutes a limitation of the right to vote, specifying and actualizing the right for each member of the community. Absent this specification of the right’s scope and content, there would, quite simply, be no exercisable right. Yet, it remains that the limitation of a right is not usually undertaken in a single legislative enactment. Rather, a right is habitually delimited in stages, as aspects of each constitutive limitation is considered and re-visited from time to time. At each stage, the legislature establishes (or amends) a specification and the definition of a right is fleshed out with each new limitation. The argument presented in Chapter 4 according to which all properly specified rights are absolute is not undermined by the limitation of a right in stages so long as each stage of limitation speaks to all that is relevant about that limitation. For example, a limitation of the right to vote regarding age should speak to all that is relevant about age, including the minimum age one must have to vote, the modalities for the determination of age, the acceptable forms for the proof of one’s age and so on. Even if the overall specification of the right to vote is partial, it is nonetheless complete with respect to the issue of age. It permits one to appeal to ‘an algorithm for deciding as many questions as possible – in principle every question – yes (or no)’, this individual is (or is not) qualified to vote. Now, while legislation prescribing the limitation of a right will purport to have taken into account everything that matters about the right’s limitation, this may fail to obtain. Legislation, contrary to the legislative deliberation that precedes it, is not designed to animate the circumstances of politics; it purports to settle that which it sets out and to bring reasonable disagreement to an end. It is a manifestation of political

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authority and the deciding to pursue a course of action in the absence of unanimous agreement. That said, legislation does not (indeed, cannot) transcend the circumstances of politics. There will be some who continue to consider the limitation of a right prescribed by legislation misguided, either because it was adopted without all considerations having been taken into account or because it is, quite simply, the wrong limitation. But precisely because the limitation of a right is prescribed by the legislature, it is subject to legislative change. Of course, while it stands, the limitation of the right commands respect for the ‘sort of achievement it is’.73 Yet, it remains that the possibility of change is one of the characteristics of legislative action; aspiring legislators often campaign for election on the promise of un-doing or re-doing what was previously done or un-done.74 In this way, the legislative limitation of a right is subject to change if new legislation is passed establishing a new limitation. This, as will be reviewed below, allows the legislature to engage, on an ongoing basis, with the re-negotiating of the limitation of constitutional rights.

C Constitutional re-negotiating and the limitation of rights Karl Marx once claimed that it was a ‘trick’ of the Constitution of the French Republic of 1848 that it ‘grant[ed] full liberty, [laid] down the finest principles, and [left] their application, les détails, to be decided by subsequent laws’.75 It is indeed no trick, no deception that the limitation of constitutional rights is undertaken legislatively. One’s conclusions as to the limitation of rights are very often tentative and properly open to challenge at a subsequent time. A constitution can, no doubt, go some way in delimiting a right, but with remarkable consistency constitutional framers have laid down ‘the finest principles’, leaving the details – the further limitation of rights – to the constituted authority that is the legislature. The underdeterminate rights guaranteed by a charter of rights represent ‘incompletely theorized agreements’ (to borrow from one of

73 74

75

Waldron Dignity of Legislation 156. See A. Marmor ‘Should we Value Legislative Integrity?’ in R. W. Bauman and T. Kahana (eds) The Least Examined Branch: The Role of Legislatures in the Constitutional State (New York: Cambridge University Press, 2006) 137. K. Marx ‘The Constitution of the French Republic adopted on 4 November 1848’ cited in R. Alexy A Theory of Constitutional Rights (Oxford: Oxford University Press, 2002) 212.

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Sunstein’s three uses of that expression)76 – they are drafted so as to abstract away from the controversies of specification and formulated in a manner that commands consensus. In the case of rights, this is a sound choice. The dynamic aspect of rights ‘is fundamental to any understanding of their nature and function in practical thought’.77 This dynamism rests on the contingency and tentativeness of the conclusions of practical reasoning that constitute rights and their associated duties, obligations, claims and so on. To attempt to do too much by way of specification in the constitution would be to stifle this dynamism. It would remove from the democratic authority of citizens the determination (and re-determination) of the scope and content of their rights. Rather, by providing for only the partial limitation of rights and leaving the further limitation of rights to be determined subsequently, a constitution provides a thin architecture and a forum for democratic activity. The concept of a constitutional mandate to implement – that is, to give further effect to – constitutional rights inheres in a limitation clause and in the idea of limitation more generally.

1

The constitution as activity

By leaving the limitation of constitutional rights to be specified by legislation, the constitution is an endless becoming. The incomplete limitation of rights within the constitution leaves the constitutional project open with respect to the limitation of rights; by way of a limitation clause, a charter of rights explicitly delegates to the legislature part of the responsibility for maintaining and securing the political legitimacy of the State. For the constitution goes only so far in reconciling the principles of democracy and human rights reviewed in Chapter 1; the rest is left to the legislature as it struggles with the limitation of underdeterminate rights. Understanding the constitution, and especially the limitation of constitutional rights, as an activity diversifies one’s attention: one looks not only to the constitution as the source for the limitation of rights, but also to the legislature which, by participating in the fleshing out of the meaning of the constitution, participates actively in the ongoing activity that is the constitution. The role of the legislature is not, principally, ‘to 76

77

See Sunstein ‘Incompletely Theorized Agreements’; Sunstein Legal Reasoning and Political Conflict. Raz The Morality of Freedom 171.

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recognize’ what is or ‘to declare’ what is already determined by the constitution. For the distinction between interpretation and construction reviewed above reveals how very little is determined by the constitutional charter of rights itself. The legislature’s construction of a right’s limitation is always contingent. It constitutes an exercise of political judgment which purports to reconcile the principles of political legitimacy. Yet, because the limitation is created and postulated and not discovered, logically deducted or rationally commanded, it can claim to be no more than a posited approximation of reconciliation. For this reason, ‘the authoritativeness of the construction’ can be maintained ‘only by the continuing efforts of political actors themselves’.78 Legislation establishing the limitation of a right may be revisited by the legislature at any time that a majority of legislators see fit. The legislature is free to change, even radically, the legislative limitation of a constitutional right over time, from one generation to the next, from one election to the next, even from one sitting of the legislature to the next. At any point in time, the legislature may engage again in the process of limitation of a right, providing a different limitation of the right. Saying this in no way denies that there will be limits that are not questioned or that will be maintained after being questioned. Yet, the persistence of a right’s limitation in legislation is not guaranteed; it requires the work of each subsequent generation. The relative stability of legislatively prescribed limitations of rights in a free and democratic society reveals the commitment by citizens to rights. But if one were to question whether leaving the further limitation of rights to the circumstances of politics and the legislature’s role therein effectively leaves ‘everything up for grabs’, the ‘most straightforward answer’ would have to be: ‘Yes – everything is up for grabs in a democracy’, which is not to say that nothing is ever stable.79 Of course, when abstracted from their particulars and specifics, rights command consensus; but actualized and real rights reveal that the ‘political legitimacy of their construction necessarily takes precedence over the issue of their being interfered with’.80 The question of interference can only properly be determined after the scope and content of the right have been determined. No amount of championing ‘rights’ can obfuscate this simple, yet often neglected reality. In this way, the articulation of the limitation of constitutional rights becomes an activity to be 78 79 80

Whittington Constitutional Interpretation 158–9. Waldron Law and Disagreement 303. Bellamy Political Constitutionalism 156 (emphasis added).

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undertaken, continued and performed by the legislature. And because this activity is never put beyond reach, citizens are free to change the limitation of their rights. The limitations of constitutional rights are forever subject to democratic testing. And this is properly so. The delimitation of a right is contingent on too many features and the constitution of a free and democratic society is liable to fluctuate according to too many considerations to suggest that the limitation of rights should never change. Now, it would be unwise and contrary to the desiderata of the rule of law to change the limitation of a right too often, but it does not follow that constitutional re-negotiation ‘can only be justified in exceptional circumstances and through a special kind of politics’.81 Rather, by situating ‘constitutional debate as part of the normal legislative process’, citizens may, consistent with the requirements of political legitimacy, ‘continuously reconstitute themselves and democracy through normal politics’.82 It does not follow that nothing is stable and that all limitations must be constantly revisited. Rather, if the re-negotiating of a right’s limitation is available, the unwillingness to question it is not in contravention of the principle of democracy; ‘when citizens do not invoke their rights of amendments and repeal, although they know that they could do so easily and without being punished’, it can be maintained that ‘they are implicitly agreeing to whatever framework is currently in place’.83 Indeed, the fact that certain limitations of rights have not been re-negotiated (when they could) reveals that citizens consider those limitations to be among the bedrocks of their free and democratic society. Those limitations serve the self-constitutive role of creating and choosing one’s free and democratic society. In this way, citizens can be understood, in a real sense, to give themselves that (existing) limitation of a right by continuing to sustain it – they accept ‘some of the decisions of the past because, on balance, [they judge them to be] good decisions, improving the quality of present deliberations and making present problems easier, not harder, to solve’.84 And because the opportunity to change the (existing) limitation of a right obtains at all times, there is ‘[n]o need to schedule magical moments in which express consent must be proclaimed aloud’.85 Rather, the choosing to maintain the existing limitation of a constitutional right constructed 81 82 84

85

Bellamy Political Constitutionalism 135. Bellamy Political Constitutionalism 136. 83 Holmes Passions and Constraint 157. Holmes Passions and Constraint 10. See also J. Goldsworthy The Sovereignty of Parliament: History and Philosophy (Oxford: Clarendon Press, 1999) 217. Holmes Passions and Constraint 153.

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by legislation does not affront the principle of democracy so long as the collective ‘choice’ of citizens remains an active one of nonintervention. As reviewed in Chapter 1, if a constitution may be re-negotiated as a statute may be changed, then it too owes its continuing existence to the virtual, even if not actual ‘decision’ of citizens not to amend or to repeal it. The further limitation of rights by the legislature provides this gateway between legislative activity and constitutional re-negotiating. A limitation clause embraces within (not beyond) the constitution the unassailable point that no amount of foresight can enable one to conceive of all the possible considerations which inform practical reasoning about rights. In this way, the constitution cannot, consistently with the requirements of political legitimacy, be an end-point, a final destination (lest it invite abandonment). The normal democratic process, constituted in part by the constitution and further specified by legislation delimiting the rights of political participation, is the site for the constitutional activity of limiting and, from time to time, re-limiting the rights set out in the constitution. When undertaking the task of completing (and re-completing) the constitutional project with each limitation (and re-limitation) of constitutional rights, citizens are not in an ‘original position’ tasked with designing a constitution and legislative process; nor are they in search of convening special conferences or requiring super-majorities or appealing to a specialized ‘constitutional politics’.86 By conceiving of the constitution as an activity, there is no single, identifiable moment of constitution-making. Rather, because reasonable disagreement will never cease and because changing circumstances affects people’s reasoned opinions, ‘constitution-making needs to be seen as an ongoing political process’.87 Through the (further) limitation of rights, the constitution is created, sustained and amended through the legislative process and resists change and succumbs to change through that very process. One might say, following Bellamy, that the constitution ‘must be left open so we may rebuild the ship at sea – employing, as we must, the prevailing procedures to renew and reform those self-same procedures’.88 The constitution is rebuilt according to the legislative process – the normal democratic process – that is already at sea insofar as both the constitution and the legislative process are already 86

87

Ackerman’s ‘dualist’ democracy distinguishes between ‘normal politics’ and the ‘higher lawmaking’ of ‘constitutional politics’: see Ackerman We the People: Foundations. Bellamy Political Constitutionalism 106. 88 Bellamy Political Constitutionalism 174.

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constituted. The process of rebuilding is in this sense, quite simply, ‘continual’ as citizens appeal to the rules, procedures and institutions already in place so as to challenge, contest and change those self-same rules, procedures and institutions.89

2

The exercise of legislative authority

When the legislature adopts the limitation of a right, it is also contemporaneously adopting the limitation of something else: its own legislative authority. By legislating the limitation of a right, the legislature recognizes boundaries to its own political authority, even if it maintains the authority to revisit the matter. It is no fantasy to suppose that the legislature not only can, but equally does understand itself as the author of its own legislative boundaries. The basic idea that ‘limited power is more powerful than unlimited power’ – that ‘restraints strengthen’ – is not new to political thought, though its merits have been forgotten by much of constitutional scholarship.90 No legislature of a democratic constitutional State seeks to exercise its legislative authority over all matters, even if it reserves the authority to decide over what matters it will exercise its authority. This duality to all legislative determinations of a right’s limitation – the positing of the authority to decide and the exercise or non-exercise of such authority – assists one in appreciating again the achievement of legislation. But, one may object, is it not the case that the limitation of a right should be its proper limitation and not the limitation adopted by the legislature? The legislature no doubt may propose the limitation of a right, but this limitation may be wrong. Should one not seek out the proper limitation of a right rather than accept whatever limitation the legislature has adopted? One should be careful in answering this question, for although it suggests an obvious affirmative answer, it misstates in some respects the relationship between the legislature’s limitation and the proper limitation of a right. Let us recall the lessons of incommensurability previously reviewed. In many instances, there will not be a single proper limitation of a right: reason will identify multiple (though, of course, not endless) candidates for a right’s limitation and will leave to political judgment and choice the responsibility for selecting among them. In these cases, reason alone cannot determine the proper limitation of a right; a decision-maker is needed. And the decision-maker will 89

Bellamy Political Constitutionalism 175.

90

Holmes Passions and Constraint 109.

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adjudge one of the candidates for limitation as appropriate for adoption. When the decision-maker is the legislature, it will adjudge one of the candidates for limitation as a proper limitation for us. For in having the democratic authority to decide for citizens, the legislature establishes one of the incommensurable alternatives for the right’s limitation as a proper one for the free and democratic society in which citizens live. In this sense, a legislative limitation will be a proper limitation of a right, even if it is not the proper limitation – the limitation is not dictated by reason and may be changed. Yet, because the legislature has the authority to decide between available candidates for limitation, the limitation of the right that is enacted should be followed by citizens until it is changed. Of course, one may in turn object and highlight that selecting between incommensurable alternatives is not the only case confronting a legislature. It is doubtless the case that some aspects of a limitation are incommensurability-free. Can one not in these cases affirm the obvious point that the proper limitation of a right is not necessarily the legislature’s limitation of a right? (Indeed, can one not make that indictment even in cases of incommensurability when the legislature selects a limitation that is excluded by reason as being outside the range of reasonable alternatives?) The answer should of course be yes, but with one caveat. Who, if not the legislature, should be identified as the judge of the proper limitation against which to evaluate the legislature’s limitation of a constitutional right? The only arbitrators of what should be legitimately decided for citizens must be citizens themselves and political legitimacy requires that the ‘institution which comprises our representatives and the institution which resolves our ultimate differences in moral principle ought to be one and the same’.91 It is for these reasons that the legislature institutionalizes and internalizes the circumstances of politics and provides that the construction of a right’s limitation favoured by a majority of legislators should be deserving of citizens’ respect, even if citizens disagree with what has been decided. For those very citizens are, in turn, invited to advocate for change through those same democratic channels that led to the adoption of the right’s limitation in the first instance. In a free and democratic society, no destination – including the limitation of a right – is necessarily final; the limitation of rights remains an activity that is ongoing and democratic.

91

Waldron Dignity of Legislation 87.

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Conclusion We come to see that the citizens of a democratic constitutional State ‘will always be in the position of beginning again: entering into discussions and negotiations over reasonable demands to modify some existing rules and the global system, and being prepared to acknowledge and respond to the voices of dissent that will inevitably arise in turn in response to the last reconciliation’.92 Because the limitation of rights is never beyond reach, its might-have-been-otherwise character is never beyond imagination. The democratic activity of constructing the limitation of rights left open by a constitution illustrates how citizens (and their representatives) must ‘determine for themselves’ what the constitution will ultimately mean, and ‘in doing so they engage in the elemental task of politics and take on the highest responsibilities of self-governance’.93 In this way, the constitution – and especially the underdeterminate rights it guarantees – are ‘shaped within politics at the same time that politics is shaped’ by the rights it constructs.94 This identifies the constitution as ‘both an independent and a dependent variable in political development’;95 it requires of the legislature the construction of the rights’ scope and content, but equally leaves to the legislature’s exercise of political authority the determination of that very scope and content. Constitutional rights are therefore both constraints on legislative action and shaped by that very action. How the legislature should go about reasoning these contingent and contestable questions is the task of the following chapter. 92

93 94 95

J. Tully The Unattained Yet Attainable Democracy: Canada and Quebec Face the New Century (The Desjardins Lecture, McGill University, 23 March 2000) 17. Whittington Constitutional Interpretation x. Whittington Constitutional Interpretation ix. Whittington Constitutional Interpretation 214.

6 Justifying rights in a free and democratic society

Introduction How are rights to be justified in a free and democratic society? On its face, this question may seem ill-posed; after all, under the received approach to the limitation of rights, it is the infringement or violation of rights, not rights themselves, that require justification. Yet, because rights are constituted by their limitation, the process of practical reasoning by which those limitations are identified must appeal to reasons, which, if valid and when taken together, can justify the specification of the right. The justificatory work is undertaken in identifying the scope and content of a right, and not its infringement or violation. Indeed, as reviewed in Chapter 4, rights, once delimited, are absolute and not subject to justifiable infringements or violations. The question of a right’s justification animates not only the theorist or scholar engaging in practical reasoning, but also the citizen and the citizen’s representatives tasked with the responsibility for actualizing constitutional rights by limiting the underdeterminate guarantees set out in a charter of rights. ‘What reasons’, the theorist, scholar, citizen and legislator will ask, ‘are available in a free and democratic society for debating and for justifying the limitation of rights?’ The various limitation clauses of charters of rights provide some general indication of the genre of reasons available for justifying the limitation of rights. The European Convention on Human Rights requires that limitations be ‘necessary in a democratic society’,1 the Canadian Charter of Rights and Freedoms and the New Zealand Bill of Rights both require that rights’ limitations be ‘as can be demonstrably justified in a free and democratic society’,2 and the South African Bill of Rights provides that a right’s limitation must be both ‘reasonable and 1 2

European Convention, arts. 8(2), 9(2), 10(2), 11(2). Canadian Charter of Rights and Freedoms, s 1; New Zealand Bill of Rights Act, s 5.

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justifiable in an open and democratic society based on human dignity, equality and freedom’ in addition to specifying a number of factors that must be addressed.3 The Human Rights Act of the Australian Capital Territory and the Charter of Human Rights and Responsibilities Act of the state of Victoria,4 like the Canadian Charter and the New Zealand Bill of Rights, require that limitations be ‘as can be demonstrably justified in a free and democratic society’ and, like the South African Bill of Rights, provide a series of factors to guide the process. With the exception of the European Convention’s appeal to ‘necessity’, the idea of justification in a free and democratic society animates the question of a right’s limitation in all limitation clauses. ‘Necessity’, at least on its face, has a different quality than ‘justification’, suggesting a more exacting or urgent standard.5 Yet, despite the different quality of each idea abstracted from context, ‘necessity’ here should be understood to require both that ‘the law under challenge must be necessary for the public purpose it purports to protect (say public health, or morals)’ and, in the lexicon of the received approach to the limitation of rights, that this ‘purpose must be a “compelling state interest”’.6 While the preceding chapters have taken some distance from the idea that only ‘compelling’ (or ‘proportionate’ or ‘balanced’) ‘state interests’ may delimit a right, the main point remains valid: the necessity of a right’s limitation can be demonstrated by the reasons which justify it. While the received approach errs in narrowing the field of possible justificatory reasons to ‘compelling state interests’, it nevertheless correctly understands ‘necessity’ to be code for ‘justification’. This could not be otherwise, for the entire process of the limitation of a right is directed by the idea of justification. Any claim of right that cannot be justified is not a claim of right but rather an unjustifiable and impertinent (false) claim.

3

4

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6

Constitution of the Republic of South Africa, s 36(1). The factors are: ‘a. the nature of the right; b. the importance of the purpose of the limitation; c. the nature and extent of the limitation; d. the relation between the limitation and its purpose; and e. less restrictive means to achieve the purpose’. Human Rights Act 2004 (Australian Capital Territory), s 28; Charter of Human Rights and Responsibilities Act 2006 (Victoria), s 7. In Handyside v. United Kingdom (1976) Series A no 24 (1979–1980) 1 EHRR 737 [48], the European Court stated that ‘the adjective “necessary” … is not synonymous with “indispensable” …, the words “absolutely necessary” and “strictly necessary” … neither has it the flexibility of such expressions as “admissible”, “ordinary” …, “useful” …, “reasonable” … or “desirable”’. Finnis ‘A Bill of Rights for Britain?’ 303, 327.

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The other slight difference animating limitation clauses is with respect to the appellation given to the political society in which the limitation of a right is to be justified. The European Convention makes reference to ‘a democratic society’, the Canadian Charter and the New Zealand Bill of Rights, Australian Capital Territory Human Rights Act, and Victorian Charter of Human Rights and Responsibilities appeal to a ‘free and democratic society’, and the Constitution of South Africa in turn appeals to ‘an open and democratic society’. These differences are little more than stylistic. In all cases, the article ‘a’ (rather than ‘our’ or ‘this country’s’) suggests that the standard of political society is normative (and may be appealed to) rather than empirical (and discovered, for example through comparative analysis). No doubt, comparative analysis may suggest that the limitation of a right is justified in a free (or open) and democratic society because what one considers to be other free and democratic societies similarly define the right. But it remains that the comparative exercise is undertaken for the purposes of illuminating the more abstract standard, which may be informed but not necessarily determined by the limitation of rights in other political societies. Accepting that the various expressions denoting ‘political society’ in limitation clauses all appeal to an abstract, normative standard, how should one proceed to interrogate this standard and what reasons will be available for justifying rights within this standard of a free and democratic society?7 It is a characteristic of free and democratic societies that the process of limitation is undertaken discursively. It is generally inconsistent with a free and democratic society to determine the limitation of rights and the other components of political society by decree, without public exchange. It is rather a characteristic of a free and democratic society that the limitations of rights are not decided without debate, without reasoned deliberation. One need merely direct one’s attention to debates in the legislature, in the press, within the polity, in the courtroom, and even in the executive caucus to appreciate how, in a free and democratic society, the process of limitation is undertaken discursively. Indeed, it is generally recognized that freedom of expression is ‘among the foundation-stones of all political democracies’.8 But beyond the wide guarantee of free speech awarded to the expression of reasons in political society, a free 7

8

I employ this among the other expressions for no reason other than its familiarity in scholarship. J. Raz ‘Rights and Individual Well-Being’ in Ethics in the Public Domain: Essays in the Morality of Law and Politics (New York: Clarendon Press, 1994) 39.

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and democratic society appeals to a certain kind of reason for debating matters of public concern – a mode of reasoning which has come to be known as public reason.9

A The parameters of public reason The term ‘public reason’, Finnis informs us, ‘enters English discourse, so far as we can see, on the lips of Satan’ – it enters our vocabulary with John Milton’s epic poem Paradise Lost.10 Satan’s public reason serves as a ‘component in a sophisticated mask for motivations one could accurately call private, however widely they may be shared: motives of revenge, will to power, and personal “honour”, all of them passion(s) yoking reason to their service, and by it masked and glamourized (“rationalized”) as reasons’.11 This is no longer the sense in which the idea of public reason is appealed to; indeed, public reason today can be understood to animate commitments of an altogether different order, displaying the proudest virtues of citizenship. Today, the idea of public reason is used to communicate any number of ambiguous, debated, and contested ideas of public reason. At times, public reason is understood in the sense of the reasons employed by the public in public. At other times, it is narrowed to the reason employed by political institutions, such as Rawls’ focus on ‘the discourse of judges in their decisions …; the discourse of government officials …; and finally, the discourse of candidates for public office and their campaign managers’.12 In turn, some understandings focus less on who is speaking and, in turn, identify public reason with those reasons that ought to be made public and open for all to evaluate, to challenge and to revise.13 Now, 9

10

11 12

13

Rawls writes that ‘[p]ublic reason is a characteristic of a democratic people’: Political Liberalism 213. J. Finnis O Racji Publicznej [On ‘Public Reason’] (Ius et Lex Warsaw 2005); J. Finnis ‘On “Public Reason”’ (2007) Oxford Legal Studies Research Paper No 1/2007, 2 (footnote omitted). (Subsequent references will be to the Research Paper.) Finnis also highlights (at 2 n 2) a slightly earlier usage by Hobbes in Leviathan (1651) ch 36. Finnis ‘On “Public Reason”’ 2. Rawls Political Liberalism 443. Rawls is sometimes more subtle and writes ‘the ideal of public reason does hold for citizens when they engage in political advocacy in the public forum, and thus for members of political parties and for candidates in their campaigns and for other groups who support them. It holds equally for how citizens are to vote in elections when constitutional essentials and matters of basic justice are at stake’ (Political Liberalism 215). Although it may be tempting to suggest that this account of ‘public’ does not speak to the reasons themselves, but only to their audience, it would be erroneous to think that the

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given the range of understandings animating the idea of public reason, one’s appeal to this concept should be accompanied by an exploration of how one employs the idea. For in order to understand what reasons are available to the citizen and the legislator in engaging the process of practical reasoning for limiting rights, one should make clear one’s understanding of the contested and debated parameters of public reason.

1

The regulation of matters political

Let us begin with the aim of public reason: to regulate public debate. As a standard for the good citizen, an ideal of public reason should regulate the citizen’s reason-giving in two ways: ‘as a standard for self-evaluation and … as a standard for political criticism’.14 The first role of public reason should be to guide the citizen qua participant in public debate with fellow citizens. It is a communicative orientation that provides me (a citizen) with a norm against which to evaluate whether my reasons are appropriate in my attempt to convince you (a fellow citizen) of the merits of my argument. In public debate, I seek ‘to convince, persuade, communicate, to open [my] mind to other perspectives, hear what others are saying, remind them of things they may have overlooked, exchange experiences, proverbs, images, and insights’.15 In seeking to convince you, I should employ reasons that speak to you, that you can appeal to, that you can relate to. I ought to participate ‘in a way that is, so to speak, apt to be received’ by you.16 You should be able to understand and to relate to what I have said in such a way that it will impact your own convictions, reflections and considered opinions on the subject matter of discussion. No doubt, these considerations are relevant to all communicative projects and are not unique to public debate. But in a democracy attempting to address political matters, I should realize that ‘you’ (my fellow citizen) are not one, but countless other citizens. My reasons should then abstract somewhat from your situation to the situation common to the citizens of our free and democratic society. My reasons should only be those reasons which are ‘accessible’ to all fellow citizens

14 15

16

audience to which reasons are directed does not have some impact on the reasons themselves. L. B. Solum ‘Constructing an Ideal of Public Reason’ (1993) 30 San Diego Law Review 729, 733. J. Waldron ‘Religious Contributions in Public Deliberation’ (1993) 30 San Diego Law Review 817, 834. Waldron ‘Religious Contributions in Public Deliberation’ 836.

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‘whatever their religious beliefs or cultural practices’.17 This criterion of accessibility, as we will see, should be understood in a normative, and not in a predictive sense. In a free and democratic society, citizens should aspire to make all political decisions not only in a manner that allows each citizen to participate, however indirectly, in the decision-making process, but citizens should also aspire to make decisions that are justifiable to all. As reviewed in Chapter 5, the legislature is not merely a site for the counting of yeas and nays but also, and critically, a forum of justification. In this way, the idea of public reason and the idea of justification are inextricably tied; in the words of Rawls, ‘[p]ublic reasoning aims for public justification’.18 Even if contemporary ‘public debate does take place “by the rough process of a struggle between combatants fighting under hostile banners”’, it is nevertheless the case that citizens ‘often make their contributions as though they expected others to listen to them’.19 Such is the promise on which public reason hinges. Now, it may be the case that I employ reasons that do not speak to you or to other citizens, that do not seek to convince you or other citizens of the merits of my position but that rather seek your and their acquiescence, your and their unreasoned support. But in doing so, not only do I do violence to the standard for my own self-evaluation, I also open myself to political criticism from you and other citizens. That criticism should assist me in appreciating why my reasons are ill-guided and why, in the spirit of deliberation with my fellow citizens, I should forgo those reasons and be motivated to seek reasons that should be accepted (because accessible to, even if not endorsed) by you. These constraints speak to a ‘duty of civility’;20 that is, ‘a willingness’ on the part of the 17

18 19 20

Finnis ‘On “Public Reason”’ 6. Following Finnis, these are ‘the principles (communia principia rationis practicae) called in the tradition “natural law”, on the understanding that they are “natural” because, and only because, they are rational – requirements of being practically reasonable – and thus accessible to beings whose nature includes rational capacities’: ibid 6 (footnote omitted). See also J. Finnis ‘Abortion, Natural Law, and Public Reason’ in R. P. George and C. Wolfe (eds) Natural Law and Public Reason (Washington, DC: Georgetown University Press, 2000) 77–8; J. Finnis ‘Public Reason, Abortion, and Cloning’ (1998) 32 Valparaiso University Law Review 361, 364. Rawls Political Liberalism 465. Waldron ‘Religious Contributions in Public Deliberation’ 837. Rawls Political Liberalism liii, 217, 253, 444–5. See also R. Audi ‘The Place of Religious Argument in a Free and Democratic Society’ (1993) 30 San Diego Law Review 677, 700; S. Macedo ‘In Defence of Liberal Public Reason: Are Slavery and Abortion Hard Cases?’ in R. P. George and C. Wolfe (eds) Natural Law and Public Reason (Washington, DC:

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citizen ‘to listen to others and a fairmindedness in deciding when accommodations to [one’s] views should reasonably be made’.21 It does not necessarily follow that an affront to public reason takes the speaker outside the proper limitation of free expression; what public reason asks of the citizen is more than what freedom of expression gives. The idea of reciprocity captures the relationship that should obtain between citizens communicating with the goal of convincing each other in the circumstances of politics.22 It regulates the reasons that citizens should employ in that activity; it articulates the disposition of citizens seeking cooperation in deliberating about what should be done for the community. Students of public reason encounter some difficulties in articulating the boundaries of this disposition to cooperate with fellow citizens. Accepting that not all citizens are disposed to seek cooperation, it is excessive to maintain that one should employ reasons ‘acceptable to all’ if that expression is understood as ‘accepted by all’. For the result could be an empty set. It is rather better to maintain that a citizen ought to offer reasons that should be accepted by others who are, and indeed should be, ‘similarly motivated’.23 The idea of public reason should not be ‘a matter of assessing/predicting what judgments would be made, and opinions adopted, by people with the cultural formation and stock of prejudices they actually have’; rather: [A]ccessibility corresponds to one of the principal ‘marks’ (not a criterion!) of truth: if one holds a proposition to be true, one holds that, at least under ideal epistemic conditions (contextual, evidential, and personal), that proposition would be judged true by everyone – and in that sense is accessible to everyone – even by those whose temperament or circumstances, as one confidently and reasonably predicts, will in the non-ideal, factual world prevent them from judging it true, or make it unlikely that they will.24

One should employ reasons that are accessible to all, in the sense of should be accepted as part of reasons that will contribute to public

21 22

23 24

Georgetown University Press, 2000) 35; T. R. S. Allan Constitutional Justice: A Liberal Theory of the Rule of Law (Oxford: Oxford University Press, 2001) 286. Rawls Political Liberalism 217. See A. Gutmann and D. Thompson Democracy and Disagreement (Cambridge, Mass: Harvard University Press, 1996) ch 2. Gutmann and Thompson Democracy and Disagreement 53 (emphasis added). Finnis ‘On “Public Reason”’ 6–7. See also Finnis ‘Natural Law and the Ethics of Discourse’ 354, 370. Truth will not encompass all aspects of public reason for the reasons reviewed in previous chapters (and below) on the role of incommensurability and the formative character of ‘choice’.

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exchange and debate. One should avoid stricter criteria such as ‘persuasive’ or ‘acknowledged by all as correct’. This brings us to the question: To what debates, discourses and deliberations should public reason apply? At one extreme, public reason could seek to regulate all debate, discourse and deliberation, irrespective of the subject matter (including, for example, both the limitation of freedom of expression in relation to hate propaganda and one’s relationship to the Divine) and irrespective of one’s interlocutors (including, for example, discussions between Justices of the Supreme Court and discussions between family members at the dinner table). At another extreme, public reason could regulate no more than the reasoning of State officials acting in their official capacity, thereby identifying the ‘who’ (State officials) and the ‘subject-matter’ (matters regulated by the State). 25 In turn, one could narrow the focus further to include only ‘constitutional essentials and matters of basic justice’, as Rawls proposed.26 Now, too formal a division between citizens and State officials should be resisted, for there is a real sense in which we, as citizens, are ‘all officials in a democracy’.27 After all, because officials act on behalf of citizens, because they ‘in some sense, represent the views of their constituents’, because ‘they should take notice of and be sensitive to what’ citizens are saying, there ‘ought to be continuity between whatever discourse is appropriate among the people and whatever discourse is appropriate among those whom they elect’.28 This relationship is critical. When citizens direct their attention to matters political, they assume some of the responsibilities of officials (even if they do not assume the legal authority of officials). In this way, a dinner table conversation could be guided by public reason if the purpose of the discussion is to engage those at the table as citizens of a democracy discussing political matters. The parameters of public reason should not so much be focused on the place of exchange or the title of one’s interlocutor but rather should be informed by the subject matter of discussion (public reason is the reason of matters political) and the status of the interlocutors (public reason is the reason of citizens deliberating together). This follows from the claim (defended in Chapter 1) that, in a democratic constitutional State, the 25 26 27 28

A helpful discussion is found in Solum ‘Constructing an Ideal of Public Reason’ 737–9. Rawls Political Liberalism 214–15, 227–30. Waldron ‘Religious Contributions in Public Deliberation’ 829. Waldron ‘Religious Contributions in Public Deliberation’ 830 (emphasis in original).

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proper function of the State is delimited – a political society differs from ‘certain other associations such as family and church associations which, albeit with limited means, can properly aspire to bring it about that their members become integrally good people’.29 The principles of political legitimacy prevent the State from regulating all aspects of life. Public reason, like the role of State regulation, is focused on matters political. In this way, public reason contrasts with the ‘nonpublic reasons of churches and universities and of many other associations in civil society’ which are not oriented to the regulation of matters political.30 This account of the parameters of public reason encompasses more than Rawls’s ‘constitutional essentials and matters of basic justice’, which in my view (and possibly in Rawls’s view also)31 is too restrictive. ‘Matters political’ encompasses all that is properly within the regulation of the State, including debates surrounding whether a matter is properly within the regulation of the State. From this follows the status of interlocutors (citizens engaging with each other with a cooperative disposition) and the public character of their reasons. Indeed, what is termed the principle of publicity advocated by many students of public reason is a corollary of the subject matter of public reason.32 In discussing matters political, citizens should not only convince themselves that their reasons are acceptable to others, they should also verify that conviction by making their reasons public. In this way, the ‘political process of justification itself shapes in several ways the nature and validity of the reasons that [citizens] give’ each other.33 In addition to the formative component of making one’s reasons public and thereby subjecting them to evaluation by one’s fellow citizens, publicity also satisfies other aims of public reason. At a most obvious level, only publicly articulated reasons can secure the consent of citizens;34 it is insufficient to claim the consent of citizens by maintaining that if reasons were to be made public, citizens would provide their consent. The act of consent should be available 29

30 31

32 33 34

Finnis ‘Public Reason, Abortion, and Cloning’ 363; see also Finnis ‘Abortion, Natural Law, and Public Reason’ 77. Rawls Political Liberalism 213. See Rawls Political Liberalism 215, where the focus on constitutional essentials and matters of basic justice is said to be only a preliminary matter, so as ‘to consider first the strongest case where the political questions concern the most fundamental matters’; Rawls does not deny that ‘it is usually highly desirable to settle [all] political questions by invoking the values of public reason’. See Gutmann and Thompson Democracy and Disagreement ch 3. Gutmann and Thompson Democracy and Disagreement 100. Gutmann and Thompson Democracy and Disagreement 100.

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actually and not merely hypothetically. In addition, through the public exchange of reason, citizens can change their minds, re-evaluate their convictions, or confirm for themselves the reasonableness of the positions they already espouse. It is principally by making reasons public that citizens may ‘contribute[] to the broadening of moral and political perspectives that deliberation is supposed to encourage’.35

2

The dynamism of public reason

What reasons, then, should be excluded from debate about matters political? Students of public reason frame the answer to this question along the lines of exclusive and inclusive public reason.36 The exclusive view provides that only public reasons should figure in public debate whereas the inclusive view provides that public reasons should hold a central though not exclusive place in public debate. The inclusive view allows citizens to advance reasons that are not (recognized as) public reasons, so long as reasons that are (currently recognized as) public reasons are also given in support. The inclusive view should be favoured, for various reasons.37 Chief among them is that this view invites one to challenge received wisdom on the content of public reason, thereby allowing citizens to engage in the confirmation or amendment of their understandings of public reason. One should accept the possibility that there will be reasonable disagreement about the status of a reason as a public reason such that reasons will not be clearly identified as ‘accessible’ or not. Moreover, one should hesitate before foreclosing the possibility that reasons not currently recognized as public reasons will come to be so recognized in deliberation. In this way, citizens should be alive to the fact that the failure to agree with what a citizen holds out to be a public reason may result from reasonable disagreement with respect to the status of a reason as a public reason, and not from a citizen’s failure to satisfy the duty of civility. A second argument in favour of the inclusive view follows from the call for reasons in debate; namely: ‘public reason is most important when there is disagreement’.38 In the absence of disagreement, the call for exchange and debate between citizens is weaker (even if it is not absent). It is indeed in the presence of disagreement that public reason is most 35

36 37 38

Gutmann and Thompson Democracy and Disagreement 100. See also Tully Strange Multiplicity 133. See Solum ‘Constructing an Ideal of Public Reason’ 741–51. For Rawls’s endorsement of the inclusive view, see Political Liberalism 247–54, 462–6. Solum ‘Constructing an Ideal of Public Reason’ 743.

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called for and, for this very reason, public reason should not be restricted to uncontested premises – to existing consensus. To suggest as much is to suggest that disagreements can be resolved by appealing to some underlying agreement. The limitation of rights and the other components of a free and democratic society are the subject matter of reasonable disagreement between citizens and while appealing to something akin to Rawls’s ‘overlapping consensus’ or to ‘plain truths now widely accepted, or available, to citizens generally’39 may go some way in answering the disagreement, this will rarely conclude debate or resolve the disagreement. Disagreements about rights and other matters political are the fruit of ‘imagination and creativity in politics’.40 It is by being confronted by the blind spots of their reasoning that citizens discover, and a central feature of public deliberation is to expose citizens to premises, convictions and methods of reasoning with which they are unfamiliar. Debate and contest opens up a world in which a citizen’s actual existing beliefs and reasons can be revised through exchange and the confrontation of opposing ideas. It allows the citizen to benefit from the confirmation or challenge of reasons and reasoning long since adopted. The promise of this exposure allows citizens to aspire to the belief that the result of deliberation will be an improvement on the conclusions they had formed, however tentatively, prior to deliberation. To appeal only to consensus would seem to obfuscate this promise. A third argument in favour of not excluding too much from public debate a priori is related to the dynamic feature of reason. The contours of public reason are forever shifting, and the public reasons of yesterday may be excluded as unacceptable today, just as the unacceptable reasons of today may be acknowledged as public reason tomorrow. The acceptability of a reason as a public reason should be tested through political argument and disagreement and should not be foreclosed prior to such exchange. Indeed, if the central orienting idea of public reason is matters political, then public reason must (almost of necessity) be a dynamic concept. Any consensus will necessarily be ‘partial and indeterminate in an actually existing society’ for even the ‘most familiar deliverance of common sense will be denied by some; the best-established scientific results (particularly social scientific results) will be contested’.41 The frontier between matters political and matters not-political is never 39 40 41

Rawls Political Liberalism 225. Waldron ‘Religious Contributions in Public Deliberation’ 838. Waldron ‘Religious Contributions in Public Deliberation’ 839.

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wholly secure. At all times, the public reasons that we, as citizens, appeal to ‘begin from where we are [now], and appeal to those with whom we now live’.42 Our claims – empirical and not – should, of course, be ‘consistent with reliable methods of inquiry’, but ‘these methods are available to us here and now, not for all times and all places’.43 New methods of inquiry will challenge our former claims and so, in turn, will challenge our current understandings of public reason. The foregoing account suggests that public reason is an activity, an activity that is reflexive insofar as the idea of public reason should itself ‘be justified by public reason’.44 While public reason serves to regulate public debate, it must be grounded by that very debate. Any ideal of public reason must itself be justified by public reason. This recognition that the terms of public reason should not be set and settled forever in advance of discussion corresponds to the obvious goal of public reason: to legitimate answers to disagreements over matters political for which there is no consensus. This requirement of ‘justificatory reflexivity has implications for the content of the ideal’, for it is a corollary of this account that public reason will ‘emerge’ from public debate about matters political and ‘will change over time’.45 One should forgo the theorist’s temptation to determine too much prior to debate, and should let public reason unfold and be worked out by citizens themselves. The overall aim, after all, is to determine, together as citizens, whether the limitation of a right being proposed is justifiable. For this reason, the aim should be ‘to provide opportunities for the public to reason rather than specifying a rarefied type of public reasoning’.46 To recapitulate: public reason is the reason of citizens deliberating together about matters political. Given its focus on matters political, public reason is directed to those matters that ought to be reasoned about in public, in large part because public reason seeks to regulate public debate. Citizens deliberating together about matters political (including about whether a matter should be political) should offer a reason as a public reason only if they claim that reason to be accessible and fit (as a normative, not predictive matter) to be adopted by similarly 42 43 44 45 46

Gutmann and Thompson Democracy and Disagreement 15 (emphasis added). Gutmann and Thompson Democracy and Disagreement 15. Solum ‘Constructing an Ideal of Public Reason’ 735. Solum ‘Constructing an Ideal of Public Reason’ 735–6. Bellamy Political Constitutionalism 178.

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motivated citizens. One should expect the act of engaging in the exchange of public reason to be formative of what, for citizens, constitutes public reason.

B

Situating public reasons

Should one remove rights from among the ‘appropriate subjects for political decision’ and situate them outside the ‘suitable topic[s] for ongoing public debate and legislation’?47 For some students of public reason, ‘basic liberty, basic opportunity, and fair opportunity’48 or ‘the abstract values of individual dignity and equality’49 are not considerations for decision and resolution with public reason. Rather, rights are said to be part of the language of public reason, indeed ‘part of the public charter of a constitutional regime’, and for this reason, in part, are not an ‘appropriate subject for political decision by majority or other plurality voting’.50 This attitude to rights represents an attempt to reify rights, to remove them from the circumstances of politics, and to translate them into a code for apolitical politics. Despite being the rallying point for free and democratic societies, despite commanding consensus, despite universal appeal, rights cannot constitute a code for speaking apolitically. Rights-talk in the abstract camouflages the contingency, the contestation, the challenge of each right’s limitation. But when the specification of rights is brought into view, the contingency of rights-claims and their necessary reliance on the reasons which purport to justify them reveal that rights, quite simply, ‘cannot be taken as given’.51 If abstracted from their particulars and specifics, rights might be candidates for consensus and only unreasonable disagreement.52 But when actualized by specification, real-world rights reveal that no amount of championing rights-talk can obfuscate the reality that rights are the subject matter of political debate. 47

48 49 51 52

Rawls Political Liberalism 151 n 16. Although Rawls includes ‘equal basic rights and liberty of citizens’ as part of the ‘constitutional essentials’ to which public reason applies (228), he considers that ‘the citizen body fixes once and for all certain constitutional essentials, for example, the equal basic political rights and liberties, and freedom of speech and association’ (232). In this way, they are removed from further deliberation with public reason. Gutmann and Thompson Democracy and Disagreement 12, 31–2, 34. Allan Constitutional Justice 285. 50 Rawls Political Liberalism 151 n 16. Bellamy Political Constitutionalism 156. But even the selection of rights – for example, which rights are included within Rawls’ list of ‘basic liberties’ – would reveal the presence of reasonable disagreement here as well.

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It would do violence to the responsibility of citizens as moral agents to exclude rights from the concern of public reason. It seems false at a most basic level to assert, as does Rawls, that ‘basic rights and liberties … can be specified in but one way, modulo relatively small variations’ and that ‘[i]t is much easier to gain agreement about what the basic rights and liberties should be’ than it is to gain agreement about ‘principles governing social and economic inequalities’.53 As we have reviewed in previous chapters, the process of practical reasoning informing a right’s limitation is determined only in part by reason and, of necessity, relies on choices informed by imagination and creativity guided, but not determined by prior commitments. For this reason, our ‘culture combines a dedication to individual freedom with bitter disagreement about its limits’ and these disagreements, far from suggesting that rights hold less secure a position in our political society, rather ‘tell of the strength of the commitment to freedom’ together with the importance of our disagreements about its proper limitation.54 Because identifying a set of rights cannot be determined absent debate, reasons and justification and because determining the scope and content of rights cannot be determined before politics, rights cannot constitute a neutral code for political debate. Rights are, as reviewed in Chapter 4, properly identified only at the conclusion of such debate. How, then, is the justification of a right’s limitation undertaken?

1

The commitments of a free and democratic society

As a citizen of a democratic constitutional State, one is already situated in a political society that holds itself out to be and aspires to instantiate better the idea of a free and democratic society. The legislature’s mandate to limit a right is a mandate to continue the process of limitation begun (but not completed) by the framers of the constitution. For example, the further limitation of ‘freedom of expression’ under a charter of rights should not specify ‘expression’ to mean only ‘verbal speech’; that limitation of free expression would (one may reasonably surmise) be inconsistent with (what could be termed) the first premise of limitation provided by the constitution. That is, the incomplete process of 53

54

Rawls Political Liberalism 230 (emphasis added), 228, 230. The first quotation continues with: ‘not in every detail of course, but about the main outlines’. Raz ‘Liberalism, Skepticism, and Democracy’ 82. See also Waldron Law and Disagreement 311.

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limitation begun in the constitution already expands the freedom beyond verbal speech to include non-verbal expression. Any justification of a right’s further limitation should take as its first premise the limitation of the right provided in the charter of rights. The further limitation of the right – its construction – should follow from and be guided by its partial (because initial) limitation specified in the constitution itself. Beyond this initial premise in the limitation process, the process of practical reasoning proceeds with public reason. And this reason is itself situated, somewhat reflexively, within the matrix of the limitations of rights specified in the charter of rights and further specified by legislation. For citizens already situated in a free and democratic society, the limitation of a right is never undertaken tabula rasa. For these citizens, the relationship between rights and a free and democratic society is in some (perhaps many) respects already set out. Situated citizens are not in the original position tasked with designing a perfect political society from the theorist’s perspective, which is not to suggest that they should not aspire to such a model. For the citizens of a free and democratic society, questions about the limitation of a right are encountered against a backdrop of other already limited rights. No limitation of a right is a starting anew the process of designing the ideal of a free and democratic society, which is not to say, of course, that any component of the political society is not properly subject to re-evaluation against this ideal. In this way, a free and democratic society, while constructed by the many already limited rights (and other components) of the free and democratic society, can act as a standard for guiding and evaluating the justification of a right’s limitation. The proper limitation of a right is part of what constitutes a society as free and democratic just as a free and democratic society assists one in evaluating a proposed limitation as proper or not. Consider the following example: in justifying eighteen as the minimum age a citizen must have in order to vote, we (as citizens) may appeal to the fact that in our society, we have decided that eighteen years is the age of majority and have delimited other rights, including aspects of the right to liberty and accounts of personal responsibility, around this benchmark. In this way, the justification of a limitation may rely on the already established limitations of other components of a free and democratic society. If the limitation of a right being proposed is somehow inconsistent with (because no good public reasons are available to distinguish) the limitation of another right, then that proposed limitation should not be received because it is inconsistent with our free and

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democratic society as presently constituted and is, thereby, unjustified for us. For it should be recognized that ‘the making or unmaking of any particular law affects the whole body of laws’ to a greater or lesser extent, with the consequence that ‘attention needs to be paid not just to the particular measure under consideration but also to the way in which that measure will affect the broad impact of the legal system on the interests and rights of citizens’.55 Each further limitation of a right relates, to some greater or lesser extent, to the limitation of other rights and should be evaluated, guided and reasoned about in their light. The justificatory framework for the limitation of rights thus appeals to one’s already-being-situated in an already constituted free and democratic society. This framework is not an attempt to escape the difficult questions surrounding the reflexive relationship between public reason, the limitation of rights, and a free and democratic society. Rather, it appeals to the idea of incommensurability which emphasizes how, in choosing from among multiple incommensurable alternatives, one commits oneself (and others on whose behalf one is deciding). The act of choosing a path among rationally appealing but incommensurable alternatives establishes that path as a proper (even if contingent) one for the chooser and the others on whose behalf the decision is taken. One’s practical reasoning then proceeds against the backdrop of those prior decisions and those prior commitments. Those choices become a reason to evaluate subsequent ‘choices’, which are less open, less unguided, because it has been decided (and we are now committed) to proceed down this (rather than another) path. To understand the extent to which prior choices structure current exercises of practical reasoning, the creative nature of choice must be explored. For it is in understanding how the act of choosing commits one on a path that one can understand how the limitation of rights in a free and democratic society is guided by the constitution of that society. When confronting the limitation of a right as though for the first time, one engages the process of practical reasoning not only with public reason, but also by appealing to imagination and creation. In the original position, where no prior choices or commitments guide us, there is, as Finnis aptly puts it, ‘no alternative but to hold in one’s mind’s eye some pattern, or range of patterns, of human character, conduct, and interaction in community, and then to choose such specification of rights as

55

Waldron ‘Principles of Legislation’ 24 (footnote omitted).

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tends to favour that pattern, or range of patterns’.56 Practical reasonableness in political affairs will guide one along many paths, exclude many others, but rarely identify only one path consistent with public reason. While this is obviously true when public reason is unaided by one’s (and one’s society’s) prior commitments – when one is in the original position of the theorist – it remains true to varying degrees throughout the historical progression of a political society. In this way, one must temper the sense in which public reasons must be ‘sufficient’ to constitute a justification. One should discriminate between those circumstances where reason determines the answer, where reason underdetermines the answer by identifying two or more justifiable limitations, and where reason takes one only so far – leaving the rest to political judgment and choice. In each one of these cases, justification requires the provision of good and sufficient public reasons, but the requirement of sufficiency should be informed by the sufficiency of reason itself. One should not ask more of justification than one can ask of reason. In many cases, public reason will ‘hold the ring’,57 so to speak, guiding but not determining the process of a right’s limitation. The choice – understood in the real sense of options that reason supports but that reason does not prioritize – of this or that limitation of a right is, in this way, constitutive of the right in a way that reason cannot be. But, critically, that choice is also constitutive of the political society that guarantees this right in this way. It reflects a commitment to understanding this right, this way, until the choice is revisited. The creativity involved in the process of limiting rights is ‘self-creative, self-determining, more or less selfconstitutive … [o]ne more or less transforms oneself by making the choice, and by carrying it out’, but also, and crucially, ‘by following it up with other free choices in line with it’.58 For, by committing oneself and one’s society to choices made in the past, one can proceed with situated reason where nonsituated reason could not. Through a commitment to prior choices, it is possible for a political society ‘to commensurate’ incommensurables. For through choice and subsequent commitments, a free and democratic society creates a ‘hierarchy of practical norms and orientations’ that can, in turn, be relied on to inform practical reasoning in many cases, even if this hierarchy is arbitrary (because posited by choice) and contingent.59 This does not 56 57 58 59

Finnis Natural Law and Natural Rights 219–20 (emphasis added). Finnis ‘Commensuration and Public Reason’ 232. Finnis ‘Commensuration and Public Reason’ 220. Finnis Natural Law and Natural Rights 111–12. See also Finnis Fundamentals of Ethics 90.

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deny that those choices and their accompanying commitments can be revisited. Each generation has witnessed changes that could not have been imagined by the generation preceding it, changes that have required the reimaging of the limitation of many rights and other components of a free and democratic society. But so long as they stand, those choices situate and guide the citizen’s reasoning.

2

Justification in the forum of justification

There is a discursive element to appealing to public reason to justify a right’s limitation. One can, of course, justify a matter to oneself, but there is a sense in which the act of justifying the limitation of a right should be undertaken in concert with others. As reviewed in the previous chapter, the legislature is a forum of justification. Legislators should appeal to the idea of public reason and should seek to convince each other that the limitation of a right they favour should be shared by other legislators. Proposals for legislative action are evaluated, criticized, applauded and rejected throughout their consideration in the legislature. The legislature will consider amending and at times will amend the limitation of a right as the justification for the limitation is questioned throughout the many stages culminating in the adoption of a bill into law. The fact that a limitation will be adopted in the circumstances of politics is itself a strong reason compelling legislators to share their reasons in support of their position on a proposed right’s limitation. Justification speaks not only to the public reasons in favour of a right’s limitation; it also seeks to reach out to those citizens who disagree with the legislative proposal for a right’s limitation. It seeks to tell them that though their preferred limitation of a right may not be adopted, they will hopefully come to see and to accept that there are good and sufficient public reasons in favour of the limitation that is adopted. And by restricting the reasons to public reasons, the justification seeks to be provided with reasons that are accessible to all citizens even if they are not shared or adopted by all. It is in this way that disagreements are resolved in the forum of justification and beyond: resolved, not in the sense that all now agree and no disagreement remains, but rather in the sense that the democratic process offers a means to achieve a close to debate, however temporary, and despite the continuing disagreement. The ambition of the exchange of public reason rests less in the idea that ‘it generates outcomes we agree with’ than in the idea that ‘it produces outcomes that all can agree

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to’.60 The public character of public reason can thus be understood to ground public reason in the exercises and practices of reasoning by the citizenry. Now, for all the diversity of viewpoints and the opportunity to contradict, challenge and contest at the deliberative stages of lawmaking, it is important to maintain a distinction between deliberation and enactment.61 The many public reasons mooted throughout the legislative process stand in a ‘dialectical relation’ to the enactment.62 Some legislators will have favoured the enacted limitation of the right; others will have opposed it. Some will have articulated public reasons against aspects of the proposal which ultimately gained favour and resulted in amendments; others will have offered public reasons to answer objections and to defend the proposal. But in the end, the limitation of a right will be adopted by the legislature and not the legislators (even if they voted unanimously for it). While it is obviously the case that the legislature cannot act without the legislators that constitute its membership, the act of the legislature is not reducible to the individual yeas and nays articulated by the legislators. The legislative act represents their collective action as determined by the rules and procedures of the institution that is the legislature. Because of this diversity throughout the deliberation stages and the univocality of legislation once adopted, deliberation cannot be equated with legislation or relied upon to inform the reasons supporting the legislation. Respect for the procedure of the legislature prevents one from identifying the reasons articulated by a legislator as the reasons of the legislature. There are no rules or procedures which allow for the reasons of one (or more) members to be attributed to the legislature as an institution. And this is for good reason. As a forum of justification, the legislature’s process for debating and deliberating over proposals for enactment is characterized by reasoned disagreement. It internalizes the circumstances of politics and encourages all legislators to make known their reasons – for and against – a legislative proposal. No one contribution by a legislator will likely command the unanimous agreement of the other members of the assembly. One may not point to what a given legislator (or group of legislators) ‘said, wrote, or did’ so as to identify the legislature’s position on an issue. To do so would be to subvert the rules and procedures of the legislature by giving authority 60

61 62

Bellamy Political Constitutionalism 164. See also Waldron Law and Disagreement 179 and 191–2. Waldron Law and Disagreement 40 (emphasis in original). Waldron Law and Disagreement 40.

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to the intervention of a legislator even though, among other difficulties, ‘the procedural rules of debate never made [that intervention] the focus of deliberation’.63 Nor may one seek to equate the reasons of the majority of legislators to the legislature as an institution by relying on the idea that a majority of yeas sanctions a legislative proposal as the legislature’s enactment. Let us assume, for a moment, that the majority of legislators voting yea all agree on the public reasons supporting the legislative proposal – an assumption likely challenged in practice. Nevertheless, while a majority of legislators may have the authority to determine whether the legislature acts or not, it remains that all legislative action is taken in the name of the legislature – including all of its members. For this reason, the only contributions at the deliberative stage which have legislative authority ‘are those actually reflected in the text that has been voted on’ and approved.64 In other words, because only the acts of the legislature can be attributed to the legislature, only those aspects of the deliberative stage explicitly included in the enactment can be considered to be sanctioned by the legislature. The public reasons supporting the legislature’s enactment of a right’s limitation will be, at times and at others not, discoverable by recourse to the enacted text and the background of other delimited rights and components of the free and democratic society to which it contributes. But more often than not, no singular, complete account of supporting public reasons will present itself. This, after all, is to be expected. While the debate that precedes the enactment of the right’s limitation proceeds in the circumstances of politics, and while the conclusion of that debate seeks to divorce itself from those circumstances, a right’s limitation will likely not transcend the circumstances of politics. The legislature’s role as a forum of justification will not come to an end the moment that a right’s limitation is adopted. The exchange of public reasons within the legislative assembly is central to an account of the legislature as a forum of justification, but it does not exhaust it. The legislature’s justificatory stance should be both inward looking (legislators should seek to justify legislative initiatives to themselves and to each other) and outward looking (the legislature’s enactment should be justifiable to citizens). The outward looking justificatory stance is important, for it provides the citizen who did not participate directly in the deliberations in the legislative chamber with a criterion for evaluating legislative 63 64

Waldron ‘Principles of Legislation’ 29. See also Waldron Law and Disagreement 40–1. Waldron Law and Disagreement 40.

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initiatives. The citizen may ask: Has the limitation of a right been justified with public reason? The answer to this question is never wholly secure. Those who opposed the right’s limitation throughout its legislative consideration may have done so for many reasons, including because they failed to accept that any public reasons could justify the limitation. Others who accepted that public reasons supported the limitation may come to find fault in their reasoning or, with time, they may conclude that the public reasons relied on have lost their status as public reasons.65 By construing the law-making project self-reflexively, the legislature is recognized as the first body responsible for evaluating whether public reasons continue to support the limitation of a right. After all, the evaluation, criticism, applause and rejection of the reasons supporting a right’s limitation will continue long after its enactment. They will differ, perhaps, in orientation, for they will speak not to what should be done, but rather to what should now be done given the enactment of this (rather than that) limitation of a constitutional right. Nevertheless, news media, public opinion, social movements, unions, churches, non-governmental organizations, and other institutions, associations and groups will continue to question the existing limitation of a right and will encourage the legislature to re-consider its enactment or to consider possible amendments. They will call on legislators and all citizens to question the right’s limitation and will, in turn, seek to encourage each other that a different limitation should be favoured. Such is the activity of limiting rights in a democracy. For by leaving the constitution open with respect to underdeterminate rights, the further limitation of rights is never beyond the citizen’s grasp, never out of reach. The constitutional rights-project is fully theirs to complete and forever theirs to continue. Against this backdrop, one may question what role should be awarded to judicial review. What role for the courts does a limitation clause envisage? How is a court to evaluate the justification of the legislature’s limitation of a right? It is to these questions that we now turn.

C Judicial review and the evaluation of justification In many democratic constitutional States, it is a common assumption that rights are the domain of the judiciary. The role of the court in 65

One could here consider the historical difference in status awarded to religious justifications for Sunday-closing legislation.

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reviewing legislation for compliance with a charter of rights is often described with references that include ‘guardian’ and ‘protector’ of rights. Together with vocabulary suggesting that judgments are handed down (presumably from up high), references to ‘guardian’ and ‘protector’ have bred the assumption that rights are in need of protection from the encroachments of the legislature. In turn, this has led to the familiar refrain that the legislature is interested in ‘policy’ without (sufficient) regard for matters of ‘principle’ (like rights), the latter being reserved to the domain of the court. As a result, the court is identified (and, notably, has self-identified) as the forum of principle.66 Indeed, for ‘a long season, the desirability of judicial review of legislation was a complacent assumption of … constitutional, political, and moral thought’.67 One of the aims of this book has been to challenge the complacency of this assumption by emphasizing the central place of rights within legislation and the necessarily political circumstances in which the limitation of rights are articulated. I have sought to illustrate how ‘our modern preoccupation with constitutional law’ – focused as it is on the judiciary as the voice of constitutional correctness – camouflages the very real possibility that ‘our rights might be upheld … more by the prevalence of a spirit of liberty and respect among the people, than by formal declarations or other institutional arrangements’.68 I have sought to illustrate how, albeit with many misconceptions, even the received approach to the limitation of rights provides the legislature with the primary role under a limitation clause. Because rights do not stand outside the circumstances of politics, because they are at the heart of debates animating public deliberation, because of the contingency and contest of the limitation of a right, the role of judicial review is all but secure. No doubt, judicial review of legislation for compliance with a charter of rights is common practice under the European Convention, the Canadian Charter, the South African Bill of Rights and the New Zealand Bill of Rights, among other similar charters. But what are the grounds for such practice, and do they cohere with the understanding of rights and their limitations defended here?69 66

67

68 69

See Dworkin A Matter of Principle ch 2; Dworkin Taking Rights Seriously 90–100, 294–330. R. H. Fallon Jr ‘The Core of an Uneasy Case For Judicial Review’ (2008) 121 Harvard Law Review 1693, 1694. Waldron The Dignity of Legislation 84. As with the orientation of previous chapters, my focus here will be on legislation, and not on executive action or administrative decision-making.

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Before proceeding, some qualifications. The limitation clauses that have been the focus of our study range from international to constitutional to legislative charters of human rights with correspondingly different institutional arrangements for courts in reviewing legislation for compliance with rights. While the argument has proceeded with special (but by no means exclusive) reference to constitutionally guaranteed rights, it is well known that despite their differences in status, both international and legislative charters of rights have served as grounds for judicial review. For these reasons, I will assume in what follows a practice of judicial review and orient the inquiry to how (not whether) it should be exercised. As with the focus for constitutional activity in Chapter 1 and the focus for public reason in a free and democratic society in this chapter, let us proceed as citizens that are already situated. We are no longer in an original position, tasked with designing institutional arrangements. We may regret the advent of judicial review and initiate movements for change. But, for now and perhaps for the foreseeable future, it is, perhaps, as Bickel remarked, ‘late for radical changes’; ‘[j]udicial review is a present instrument of government’ and ‘represents a choice that men have made’.70 The question thus turns on how judicial review should be exercised and it is this question that the following account explores.

1

What basis for judicial review?

The favoured basis for judicial review rests on the idea of conflict between legislation and a constitutional right. Assuming the ‘supremacy’ of a charter of rights, no legislative act that conflicts or is inconsistent with a right may have force of law. (I leave aside the prior question of who is to make that determination. For even here one could maintain, as did Bickel, that insufficient attention is generally paid to the simple reflection that a ‘court can just as well uphold the Constitution, thus performing its duty under the Supremacy Clause, by taking the meaning of the Constitution to have been settled by another authority’, such as the legislature.71) Conflict or inconsistency is a possible evaluation when 70

71

Bickel The Least Dangerous Branch 14, 16. For a compelling case against judicial review of legislation for compliance with rights, see Waldron ‘The Core of the Case Against Judicial Review’ 1346. Bickel The Least Dangerous Branch 10, commenting on the assumptions underlying Chief Justice Marshall’s analysis in Marbury v. Madison 5 US (1 Cranch) 137 (1803).

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constitutional language is sufficiently precise, as when a legislature sits beyond the prescribed maximum number of sitting days. But given the underdeterminacy of most rights-provisions, the possibilities for conflict seem restricted. Of course, one would readily conclude that there is conflict between the ‘right to vote’ and a legislature’s stipulation that there shall be ‘no right to vote’. That constitutional rights are underdeterminate should not lead one to conclude that they are wholly indeterminate.72 In some circumstances, determinate evaluations of conflict or inconsistency will be possible, but those circumstances will be very few. Beyond these few, the text will ‘serve only as the putative starting point’ and not as the ‘certain beginning’ and the ‘unequivocal end’ in the process of evaluating consistency between a constitutional right and legislation.73 Indeed, a limitation clause confirms that the text takes one only so far, leaving the rest to be constructed. The provisions of a charter of rights quite simply ‘do not themselves determine a resolution of the issue in a way that is beyond reasonable dispute’.74 The underdeterminacy of so many charters of rights renders the ideas of conflict and inconsistency unavailable for the most part. In the vast majority of cases, no constitutional syllogism is available for judicial review: there is no determinate major premise (the right requires this) against which to evaluate the minor premise (legislation prevents this) allowing one to arrive at a conclusion. Indeed, a limitation clause is an explicit recognition that rights lack the necessary specificity to inform evaluations of conflict or inconsistency. Indeed, beyond these difficulties, the appeal to conflict or inconsistency undertaken in much judicial review would seem to suffer from an embarrassing paradox in so far as rights-provisions are concerned. The underdeterminacy of charters of rights, the absence of much specification, and the presence of a limitation clause all point to the willingness, on the part of those responsible for designing and enacting the charter of rights, to avoid settling the question of a right’s limitation. Charters of rights are, for the most part, designed to leave matters open; they are one of three genres of ‘incompletely theorized agreements’ identified by Sunstein: incompletely theorized agreements on a general principle in the sense that the principle is 72

73 74

See L. B. Solum ‘On the Indeterminacy Crisis: Critiquing Critical Dogma’ (1987) 54 University of Chicago Law Review 462, 473 for a distinction between determinacy, underdeterminacy and indeterminacy. Bickel The Least Dangerous Branch 74. Waldron ‘The Core of the Case Against Judicial Review’ 1368.

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incompletely specified.75 One of Sunstein’s examples resonates with the argument here defended: ‘Constitutionalism itself – a form of incompletely theorized agreement – is often made possible through this route, which leaves room for many possible specifications of underlying rights’.76 He claims, correctly, that constitution-making often ‘becomes possible through this form of incompletely theorized agreement’ and that constitutions ‘contain incompletely specified standards and avoid rules, at least when it comes to the description of basic rights’.77 This genre of incompletely theorized agreement – of which underspecified rights are an apt, perhaps paradigmatic illustration – allows for agreement on a ‘general aspiration’ whilst concealing ‘the fact of large-scale social disagreement about particular cases’.78 Indeed, it is precisely by articulating the guarantee of rights in such a way that avoids possible conflict or inconsistency with ‘particular cases’ that allows for sufficient agreement to obtain so as to enact the charter of rights. By proceeding this way, a charter of rights is designed to avoid conflict and inconsistency with the limitations of rights that will be provided for by legislation. Now, the underdeterminacy of constitutional rights is obliquely recognized (but never explicitly acknowledged) by judges exercising judicial review. For in identifying the source of conflict or inconsistency, a judge will not appeal to the charter of rights itself, but rather to the jurisprudence developed by the judicial ‘interpretations’ of the charter. At the invitation of a ‘moral reading’ of rights provisions,79 a judge searches for conflict between legislation and judicially-specified limitations of rights. Judicial review, on this understanding, is only partially a lawyerlytechnical undertaking; it is preceded by the moral–political exercise of delimiting the scope and content of rights so as to actualize the possibility of conflict or inconsistency with a legislative act. Judicial precedent becomes the source of meaning – of construction, not interpretation, as reviewed in Chapter 5 – when the charter of rights runs out. But this cannot do. For reasons of political legitimacy reviewed in Chapter 1, the political authority tasked with attempting the reconciliation 75

76 77

78

79

See Sunstein ‘Incompletely Theorized Agreements’; Sunstein Legal Reasoning and Political Conflict. Sunstein Legal Reasoning and Political Conflict 47. Sunstein Legal Reasoning and Political Conflict 35. See also Sunstein ‘Incompletely Theorized Agreements’ 1739. Sunstein ‘Incompletely Theorized Agreements’ 1739. See also Sunstein Legal Reasoning and Political Conflict 35. See Dworkin Freedom’s Law.

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of the principles of political legitimacy implicated by the limitation of rights must itself be democratic. The judge, in specifying the limitation of a right left open by the constitution, is not employing the lawyer’s task of interpretation; rather, the judge is engaging in an ‘essentially political’ enterprise of constructing the right by appeal to first-order reasons in practical reasoning.80 The very reasons animating the conception of the constitution as activity counsel against the view of removing from democratic debate (and placing in the hands of the judiciary) those matters deliberately left open by the constitution. It is indeed because the relationship between the principle of democracy and the principle of human rights is indeterminate, because neither principle is self-actualizing, because there is no ready criterion of correctness, because reasonable disagreement persists, and because the circumstances of the State are ever-changing that the specification of a right is ascribed to the political authority of the legislature. Any exercise of legislative authority to delimit a right is undertaken in the light of the possibility of a different destination and against the understanding that, in time, the limitation may be revisited by citizens. The judicial specification of rights quite simply cannot satisfy the requirements of political legitimacy. Perhaps for these reasons, the practice of judicial review has shifted somewhat. Less emphasis has been placed on the conflict or inconsistency of legislation with judicially specified rights. In exchange, the received approach to the limitation of rights has developed a balancing and proportionality analysis to evaluate the validity of a right’s limitation. As reviewed in Chapter 3, a court will undertake a preliminary specification of rights in order to evaluate whether legislation infringes or violates a right, but beyond this purports to retreat behind an evaluation of ‘competing interests’ or ‘values’. But, for the reasons reviewed in previous chapters, this camouflage cannot veil the continuing exercise of specification undertaken by the court in accepting or rejecting the ‘balance’ or ‘proportionality’ of legislation and rights. The practical reasonableness of the process of specifying a right is evident throughout evaluations of ‘proportionality’ and ‘balancing’, notwithstanding efforts by courts to discriminate between ‘internal’ and ‘external’ limitations or judicially prescribed ‘definitions’ and legislative ‘violations’ of rights. For a court to engage in the process limiting a right and to attempt to reduce it to mechanical questions of proportionality and balancing – questions that are not mandated by charters of rights or their limitation 80

Whittington Constitutional Interpretation 7, 5.

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clauses – is to continue to exercise responsibility for a right’s limitation. In doing so, judicial review confronts, albeit in a different way, the same objections afflicting the moral reading of rights: the court purports to determine the specification of rights left open by the charter. It attempts to take the place of the legislature in violation of the requirements of political legitimacy. It acts where the constitution leaves matters open for democratic activity. So what, then, is to be the role of judicial review under a limitation clause? With the exception of the European Convention’s emphasis on ‘necessity’, many limitation clauses provide that a right’s limitation must be ‘justifiable’ or, synonymously, ‘as can be demonstrably justified’. This serves, first and foremost, as a guide for the primary author of a right’s limitation; it confirms that the legislature may only prescribe specifications that are supported by public reasons. But in recognition of the fact that legislators may vote for (or against) the limitation of a right for a variety of public reasons such that no one set of reasons may be identified with the legislature, a limitation clause requires that a right’s limitation be justifiable and not justified by a single set of reasons. Now, it is true that each legislator should vote for (or against) a right’s limitation because, in that legislator’s view, the limitation is (or is not) justified, but the legislature’s limitation can only be evaluated as justifiable (or not) because no one set of reasons can be said to be the legislature’s. This is the framework under which judicial review may be exercised. Before proceeding, a point should perhaps be made explicit. In evaluating a right’s limitation as justifiable or not, one should appreciate that the task at hand is not, in all likelihood, the search for a single, overarching justificatory framework akin to the principle of proportionality challenged in Chapter 3. One should rather accept that ‘it is hard nowadays to find any merit in the claim that all rights must in the end derive from the same justification’.81 The public reasons of a free and democratic society are too diversified to be reduced to a single, justificatory analysis. The limitation of different rights may well call for different public reasons and different argumentative structures.

81

J. Waldron ‘Can communal goods be human rights?’ in Liberal Rights: Collected Papers 1981–1991 (New York: Cambridge University Press, 1993) 367.

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2

The rule of the clear mistake

The standard guiding judicial review under a limitation clause is one of justification, but in a specific way. A limitation clause requires that a limitation be justifiable; that is, supportable by public reasons. The parameters for judicial intervention are, on this understanding, demarcated by the unjustifiable; that is, those rights’ limitations for which no (or insufficient) public reasons can be offered in support. Where the only reasons supporting a right’s limitation are non-public reasons – reasons which are not accessible to all citizens – then the limitation is one that is not justifiable in a free and democratic society. Indeed, because it is unjustifiable, the limitation is not constitutive of the right; it amounts to a claim of right that is false (because unjustifiable). The focus of judicial review on this account is not on conflict or inconsistency between the constitution and legislation or between the court’s favoured moral reading of rights and legislation, nor is oriented by considerations of balancing or proportionality. Rather, the focus of judicial review is on the justification of (or, rather, the absence of justification for) the legislature’s limitation of a right. In exercising this task, however, judicial review must be alive to the circumstances of politics animating the limitation of rights. For it will be the case that the legislature’s decision to adopt the limitation of a right will rarely be accompanied by unanimous applause. For some, the limitation will be said to be too narrow, for others too generous. The debates that animate the legislative forum of justification throughout the consideration of a right’s limitation will explore the public reasons for and against the proposed limitation of the constitutional right. There will, as with other moral–political questions in a free and democratic society, be reasonable disagreement as to the justification for the proposed limitation. And this disagreement will not cease with the enactment of a right’s limitation. As reviewed above, the evaluation, criticism, applause and rejection of the limitation of a right will continue long after it is adopted by the legislature. Far from being confined to the legislative chamber, the question of the justification for a right’s limitation will animate news media, public opinion, social movements, unions, churches, non-governmental organizations, and other associations and groups. They will call on the legislature to change the limitation of the right by questioning its justification and claiming that no public reasons can be marshalled in support or that better public reasons speak against the limitation. And because

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the legislature is self-consciously fallible – that is, because the legislature makes its decisions in the course of disagreement between legislators (and citizens) who may come to recognize that legislative action has proceeded in error – a legislative destination is never permanent. The legislature will continue to consider the inevitable dissenting voices and, throughout its consideration of a right’s limitation and after its adoption, will seek ‘to acknowledge and address those voices in the laws by which all in the community must live’.82 The exercise of judicial review operates against this vibrant backdrop of reasonable disagreement, where citizens defend or question the justification of a right’s limitation, call or resist claims for its withdrawal or amendment. For these reasons, the question for judicial review should not be the question facing the citizen – do I consider this right’s limitation to be justified? – nor should the question be asked in abstraction of the circumstances of politics. For in these circumstances, citizens who do not consider a right’s limitation justified may well deny that it is justifiable. Because they reject the public reasons that could support the right’s limitation, they may deny that others could find public reasons in support. But this cannot be the role of the judge in judicial review. The judge should abstract away from the debates of citizens and orient judicial review to another order of disagreement. The question for judicial review should be oriented by what James Bradley Thayer identified as the ‘rule of the clear mistake’.83 For Thayer, the exercise of judicial review must be accompanied by the realization that the legislature is the political authority to whom power is given not merely to enact laws, but also to put ‘an interpretation [and, I would add, construction] on the constitution which shall deeply affect the whole country, enter into, vitally change, even revolutionize the most serious affairs’.84 The question for judicial review is, therefore, a secondary one; the legislature, in ‘determining what shall be done’, what answer to moral–political questions shall obtain for the community, what limitation of a right shall be the limitation for us, ‘does not divide its duty with the judges’.85 Indeed, as Thayer aptly remarks, if the judiciary ‘had been regarded by the people as the chief protection against legislative violation 82 83

84

85

Tully ‘Introduction’ 14. J. B. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ (1893) 7 Harvard Law Review 129. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 136. Chapter 5 explores the relationship between ‘interpretation’ and ‘construction’. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 148.

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of the constitution’, it would not have been authorized to undertake merely ‘incidental and postponed control’, dependent, as it is, by the action of a single individual to question legislation before the courts.86 The question for the court, therefore, is: Given the possibility of judicial review of legislation for compliance with underdeterminate rights which the legislature purports to specify justifiably in a free and democratic society, how should the court exercise its power of judicial review? For Thayer, a court should only disregard an Act of the legislature ‘when those who have the right to make laws have not merely made a mistake, but have made a very clear one, – so clear that it is not open to rational question’.87 The rule of the clear mistake recognizes that, with respect to the ‘great, complex, ever-unfolding exigencies of government’ including the further limitation of rights left open by the constitution, much that will seem unconstitutional or unjustifiable ‘to one man, or body of men, may reasonably not seem so to another’.88 And because there is a ‘range of choice and judgment’ such that the legislature is not bound to adopt any ‘one specific opinion’, any choice that is ‘rational’ should, so far as judicial review is concerned, be considered justifiable.89 Indeed, because the citizen’s question and the judge’s question are of different orders, it very much should be the case that: one who is a member of a legislature may vote against a measure as being, in his judgment, unconstitutional; and, being subsequently placed on the bench, when this measure, having been passed by the legislature in spite of his opposition, comes before him judicially, may there find it his duty, although he has in no degree changed his opinion, to declare it constitutional.90

The second-order question of justification raised in judicial review should abstract away from the circumstances of politics all the while remaining sensitive to those very circumstances. A judge should recognize that the question asked of the court is not the question asked of the citizen. The question for the court, as it were, is whether the limitation of a right adopted by the legislature falls outside the range of reasonable disagreement which animates democratic debate. It should not be the case that the majority and minority views in the legislature easily translate to the minority and majority views in the court, for the questions 86 87 88 89 90

Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 136. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 144. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 144. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 144. Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 144 (referring to a remark of Judge Cooley).

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are altogether different. The question for judicial review in evaluating the justifiability of a right’s limitation is ‘not one of the mere and simple preponderance of reasons for or against, but of what is very plain and clear, clear beyond a reasonable doubt’.91 Now, it cannot be denied that a court unrestrained by intellectual or institutional modesty could find fault with almost any right’s limitation. The mere setting of a standard of judicial review cannot, in and of itself, constrain a court. But a court, recognizing that the responsibility for delimiting the underdeterminate rights of the constitution rests with the legislature, that the limitation of rights proceeds not exclusively by rational deduction but also with political judgment and choice, and that innumerable incommensurables confront the process of practical reasoning in articulating the limitation of a right will hesitate before concluding that a right’s limitation is unjustifiable – that no public reasons can be articulated in support. For in exercising judicial review and declaring a right’s limitation unjustifiable, the court should appreciate how its intervention ‘disenfranchises ordinary citizens and brushes aside cherished principles of representation and political equality’.92 It denies to citizens (and their representatives) the political authority to decide questions for themselves, including the question whether the limitation of a right adopted by the legislature is ultimately justifiable. For in selecting the limitation of a right, citizens (and their representatives) argue about rights; they debate which conception of this or that right should be adopted by the community. And because the need for settlement on the issue of a right’s limitation ‘does not make the fact of disagreement evaporate’93 – indeed, because the fact of disagreement continues long after the legislature’s (contingent) settlement of the issue – for the court to intervene is to remove that contest from the democratic arena. By removing the contest of a right’s limitation from the forum of justification, judicial review risks emptying the sense of moral responsibility that accompanies collective decision-making, including the responsibility of those citizens to challenge and contest the limitation of a right they judge unjustifiable. It for these reasons, perhaps, that Thayer warned that the exercise of judicial review, ‘even when unavoidable, is always attended with a serious evil, namely, that the correction 91 92 93

Thayer ‘The Origin and Scope of the American Doctrine of Constitutional Law’ 151. Waldron ‘The Core of the Case Against Judicial Review’ 1353. Waldron ‘The Core of the Case Against Judicial Review’ 1370.

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of legislative mistakes comes from the outside’.94 By removing the correction of legislative ‘mistakes’, as citizens may see them, from the reach of citizens, judicial review causes a loss of ‘political experience, and the moral education and stimulus that comes from fighting the question out in the ordinary way’.95 On this understanding, the circumstances in which judicial review might be exercised are few, as they should be. For on the ‘intractable, controversial and profound questions of political morality’ involved in delimiting rights, the insight of judges ‘is not spectacularly special’.96 And even if judicial review can come to a correct answer on the ultimate question of a limitation’s justification, it will ‘inherently and necessarily do an injustice, in its operation, to the participatory aspiration of the ordinary citizen’, including the citizen who ultimately agrees with the result obtained in court.97

Conclusion The justification of the limitation of an underdetermined constitutional right will appeal to public reasons. In turn, these public reasons will be situated within a free and democratic society that already limits rights that constitute that society as free and democratic. The reflexivity of public reason and justification aptly captures the idea that the limitation of rights should be undertaken by citizens for citizens. The rights of the constitution are, after all, their rights; the free and democratic society, their society. 94 95 96 97

J. B. Thayer John Marshall (Boston: Houghton, Mifflin, 1901) 106 (emphasis added). Thayer John Marshall 106. Dworkin Freedom’s Law 74. Waldron ‘A Right-Based Critique of Constitutional Rights’ 18, 50.

Conclusion

What is the limitation of a right? What should be taken into account in limiting a right? Should a limitation be conceived as the definition or the infringement of a right? How should the limitation of a right be justified? What does the limitation of a right suggest about the popularly held assumption that no right is absolute? What does it suggest about the relationship between rights and a free and democratic society? What should be the roles of the legislature and the court in limiting the underdetermined rights of the constitution? Having now arrived at the concluding chapter, I hope that it has become clear how these questions are not merely of academic concern. In one formulation or another, they animate lively debate in legislatures, courts, and other institutions and fora of deliberation in political society. In tracing the contours of constitutional debates and cases of great public importance, one finds that these questions – sometimes visibly, sometimes less so – are at the heart of debate and adjudication in free and democratic societies. Moreover, although these questions are rarely expressly articulated and remain, for the most part, unacknowledged, they guide and sometimes can be decisive in the struggle to answer many constitutional and legislative debates. We have reviewed how, with remarkable consistency, constitutions leave rights underdetermined, providing open-ended guarantees that ‘everyone has the right to φ’ and specifying little more. The received approach to the limitation of rights equates underdetermined rights with all-encompassing guarantees, protecting limitless instances of activity as within the scope and content of rights and subjecting almost all legislation to evaluations of proportionality and balancing. As a result, constitutional rights are said to extend everywhere but, in turn, they are controlling nowhere. Constitutional rights are reduced to mere premises in practical reasoning about what should be done, all things considered. The constitution itself provides no independent reason. All analysis is undertaken as though all legislation should comply with the principle of 213

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proportionality and as though rights were opposed only to unbalanced legislative initiatives. This view should be rejected in favour of another understanding of constitutional rights and their role within the moral–political universe of a free and democratic society. By interrogating the role of limitation clauses found in most international, constitutional and legislative charters of rights and by attending to the key word limitation, we reviewed how underdetermined rights call for further specification. On this understanding, rights are understood as constituted by their limitation – that is, as implemented, concretized, and justified by the determination of their scope and content. The open-ended guarantee ‘everyone has the right to φ’ must be translated into a proposition apt for a justified claim of right. A limitation clause, on this understanding, makes explicit the need to limit further the right to φ so as to provide that ‘the class of persons A (but not B) has a right to φ in circumstances C (but not C2 or C3) and the class of persons X (but not Y or Z) is under a duty to A’, and so on. Absent this further specification, underdeterminate constitutional rights lack jural structure and recognition as suitable claims of right. As such, rights are presented as conclusions to – not premises in – practical reasoning. One cannot identify a rights-claim until one has engaged with and concluded the process of practical reasoning identifying the circumstances in which the claim is justified, against whom it can be made, and other like specifications. By engaging with these questions in the process of accounting for what the right’s scope and content shall be, one arrives at a more reflectively clear understanding of the necessary relationship between rights and responsibilities and, in so doing, avoids reifying rights and opposing them to the other requirements of a free and democratic society. Moreover, by engaging with the process of practical reasoning for determining the limitation of underdeterminate constitutional rights, one appeals to reason all the while recognizing the limited domain of reason and the importance of choice and, ultimately, decision. One appreciates the extent to which choices are constitutive of the right, but also – and critically – of the society that is free and democratic in part because the right has been specified in this way rather than another. The genuinely creative undertaking in articulating the limitation of rights points to the legislature as the political authority that should be charged with the responsibility to complete the limitation of rights left open by the constitution. Because the limitation of constitutional rights cannot be divorced from the circumstances of politics and because, in many ways, nothing but the choosing itself settles what the limitation of a

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right should be, political legitimacy requires that the decision-making process be one that is democratic. In a democratic constitutional State, only the legislature is an institution with rules and procedures which, albeit with many imperfections, can purport to represent all citizens. And only through the legislature can all citizens be said to be represented in the process that determines what shall be the limitation of constitutional rights left open by the constitution. In a democracy, the legislature is the central politically legitimate source of law-making. Limitation clauses can be understood to leave to the legislature the responsibility to complete the specification of rights left open by the constitution. In this way, the legislature – itself constituted in part by the constitution – partakes in the constitutional project. By completing the limitation of constitutional rights, the legislature can be understood to continue the constitutional negotiations that left the scope and content of rights underdeterminate. In this crucial way, a constitution can be conceived of ‘as a project that makes the founding act into an ongoing process of constitution-making that continues across generations’ because legislation, which operates within and never leaves the democratic arena, ‘carries on the system of rights by interpreting and adapting rights for current circumstances’.1 Through the limitation of constitutional rights, the constitution is an ongoing activity, and not only when the legislature provides for the specification of underspecified constitutional rights. The activity is more encompassing. Because legislation articulating the limitation of a constitutional right is never removed from the possibility of change – of amendment or repeal – the continuing existence of a constitutional right’s legislated limitation is itself an activity; an activity of virtual, even if not actual (but not merely hypothetical) continuing consent. The constitution, on this understanding, is ‘an historical project that each generation of citizens continues to pursue’, even (and especially) without recourse to formal amendments.2 This reveals that while, at the constitutional level, rights are set out only as general principles, at the legislative level rights are specified as conclusions to moral–political debates about the scope and content of a right. A limitation clause calls for a determination of that which the constitution leaves underdetermined. 1 2

Habermas ‘Constitutional Democracy’ 766, 768, 774. J. Habermas ‘Struggles for Recognition in the Democratic Constitutional State’ in A. Gutmann (ed) Multiculturalism: Examining the Politics of Recognition (Princeton: Princeton University Press, 1994) 107. See also Habermas Between Facts and Norms 384.

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What, then, are the consequences for constitutional re-negotiating? The underdeterminacy of constitutional rights signals that constitutional negotiations are unfinished, for what remains underdetermined (despite the need for determinate answers) remains open for further constitutional negotiations. In this way, the further specification of constitutional rights by the legislature engages the latter in constitutional negotiation and re-negotiation. The role of a constitution is to secure the political legitimacy of the State, not only by being itself consistent with the requirements of political legitimacy, but also by designing, constraining and empowering the legislature, the executive and the other organs of the democratic constitutional State in such a way that secures political legitimacy. In this critical way, the legislature is empowered to exercise its political authority to continue the constitutional negotiation left open when the constitution was formally enacted. But, in so doing, the legislature must also recognize the proper boundaries of its own authority. By specifying underdeterminate rights, the legislature engages in the activity of determining how the political legitimacy of the State shall be secured. And because the limitation of underdetermined constitutional rights is not undertaken by way of constitutional amendment, that aspect of the constitutional negotiation remains within ready grasp of reconsideration and re-negotiation. In this way, legislative activity can be likened to constitutional activity; it is one of the ways (perhaps one of the more important ways) in which the constitution develops and changes. Conceived as an activity undertaken and sustained by the legislature, the constitution – and especially constitutional rights – is not finished at the moment of its founding, framing, ratification or subsequent amendment. But nor is the constitution likened to a ‘common law constitution’ or ‘living-tree constitution’ reserved to the courts to update under the guise of ‘interpretation’ but settled so long as the political actors are concerned.3 The constitution on the model defended in this book is subject, on an ongoing basis, to re-negotiation by the legislature, not by the courts. And the role of the legislature, on this understanding, is not one of ‘interpretation’; it is, rather, to continue the constitutional negotiation by completing the constitutional architecture left open by the constituent authorities. It constructs the specification of constitutional rights not determined by the constitution. And because the construction of a constitutional right’s limitation is never beyond re-consideration, 3

See W. J. Waluchow A Common Law Theory of Judicial Review: The Living Tree (New York: Cambridge University Press, 2007).

conclusion

217

the constitution is never beyond re-negotiation. The underdeterminate rights guaranteed by a constitution reveal the constitution to be negotiable. The central tenet of this book has been that the limitation of rights should remain open to democratic re-negotiating. In defending the tentative and contingent specification of the scope and content of rights, I have put much emphasis on the legislative role. And it is true that ‘locating the sense of legislative limits in political culture rather than in an authoritative [judicial] institution means that we are left with the prospect of disagreement, indeterminacy, controversy among the people as to what those limits are’.4 But this should not cause us to shy away from the argument here defended. Rather, as citizens of a democratic constitutional State, we should embrace our responsibility. The negotiable constitution requires no less of us. 4

Waldron The Dignity of Legislation 84.

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INDEX

aboriginal rights, 18 abortion, 109 absolute rights, 141–6 administrative law, 159 Alexy, Robert, 58, 78, 79, 80, 84, 87, 89, 93–6, 102, 105, 106–7, 111 amendment formulas, 49 arbitrary choices, 99 artistic expression, 125 see also free expression; free speech Australia aboriginal rights, 18 Human Rights Act, 62 balancing ad hoc/definitional, 80–5 challenges to, 87–115 inadequacies, 88 incommensurability, 89–100 legislation, 4 practical reasoning, 97–100 rights limitation, 70–80 rights protection, 146 triadic scale, 93–4 vocabulary, 90 basic liberties, 25 Beatty, David, 58, 81, 87, 102, 107–10 Berlin, Isaiah, 15 Bickel, A. M., 203 bills of rights, 53, see constitutional rights boundaries of rights, 6, 124 Cabin Case, 128–9, 131 Canada, 39 aboriginal rights, 18

Charter of Rights and Freedoms limitation clauses, 61, 134 notwithstanding clauses, 49–50 rights limitation, 181 constitutional amendments, 49 Supreme Court, 91, 134 extradition, 112 limitation clauses, 71 prisoner franchise exlusion, 82–3 Sunday-closing, 74 charters of rights, see also constitutional rights abstract formulations, 1 construction, 166, 167 judicial review, 202 jural structure, 158 limitation clauses, 2, 204–5 rights limitation, 59–65, 161–3 choices arbitrariness, 98 competing interests, 99 rights specification, 138 citizens, 184, see also public reason civility duty, 186 collective decision-making, 19–21, 40 constituent/constituted authority, 43–4 constitution-making, 31–2, 34 constitutional negotiations, 27–30 constitutional rights, 7–8, 41–3 cooperation, 187 fallibility, 34, 37–8 human rights, 29 legislature, 154, 155 majority views, 157 political debate, 185–93

226

index reasonable disagreement, 38 rights limitation, 176–7, 195–8, 200, 201, 209 state authority, 188 civil law, 159 clear mistake rule, 209–10 collective decision-making, 19–21 commercial freedom, 94 common law, 169 common measures, 90–1 community interest moral issues, 108 rights limitation, 70, 72–5, 78, 85–6 competing interests redundancy of rights, 123 religious freedom, 91–3 compulsory labour, 162–3 consensus politics, 191 consent, 17 Constant, Benjamin, 15 constituent authority, 43–5, 48 constituted authority, 43–5, 48 constitutional activity, 45–54, 174–8 constitutional amendments, 49, 52 special processes, 42 constitutional challenges, 13 constitutional end-states, 30–45 constitutional mandates, 9 constitutional negotiations, 27–30, 34–43, 216–17 changing circumstances, 39 historical contingencies, 33–4 human rights, 29–30 reasonable disagreement, 38 constitutional re-negotiations, 47–52 constitutional rights absoluteness, 141–6 as principles, 67–8 as reasons, 132–3 balancing, 87 changing circumstances, 39 citizens, 7–8, 41–3 competing interests, 91–100 conclusory conception, 126 content, 130–1 contingencies, 144–5 deconstitutionalization, 100–14 definitions, 119–32

depoliticization, 104–10 dynamism, 174 emergencies, 144–3 formulation, 1 incommensurability, 91–100 internal limitations, 163–4, 166 interpretation, 66 jural structure, 158, 159 justification, 181–212 legislation, 156–60 lexicon, 6 limitation, 1–9, 118–32 as restriction, 118–23 as specification, 123–32, 133–46 clauses, 7, 8–9, 11–12 degrees, 161–5 received approach, 55–86 moralization, 138–41, 146 moral–political issues, 33, 53 normative implications, 130 optimization, 85, 91 contingencies, 110–14 requirements, 68–9 practical reasoning, 125–6, 128, 131–3, 135, 137–8, 139, 160 radiating effect, 65–9 reasonable limitations, 137 redundancy, 123 re-negotiations, 34–43, 173–9 rights-claims, 110–14 maximization, 69 scope, 67–8, 130–1 specification, 116–46, 216–17 technical balancing, 90–7 underdeterminacy, 6, 8, 13, 52–4, 205 vocabulary, 6 constitutional scholarship, 30 constitution-making, 21, 43, 47, 177, 205 courts, 65, 106, 148, see judiciary criminal law, 159 deconstitutionalization of rights, 100–14 deliberation enactment comparison, 170

227

228

index

democracy, 7 actualization, 35–6 commitments, 194–8 constitutional challenges, 13 constitutional re-negotiations, 39–43, 52 human rights, 22, 26, 29, 35 political legitimacy, 15–30 principle, 18–21 rights limitation, 147–80 justification, 181–212 depoliticization of rights, 104–10 detention, 163 determination (rights specification), 135–7 dignity rights, 161 disagreement constitutional negotiations, 38 loyal opposition, 154 dispute resolution, 7 dissent, 154, 155 Dworkin, R., 40, 117, 156 Elections Act, 171 electoral systems, 25 emergencies rights specifcation, 144–3 enactment deliberation comparison, 170 equality rights, 22, 165, 171 European Convention on Human Rights, 33 limitation clauses, 60–1, 72–3, 134 rights limitation, 161–3, 181 European Court of Human Rights extradition, 112 Feinberg, Joel, 128 Finnis, J., 99, 127, 136, 143, 184, 187, 196 forced labour, 162–3 franchise exclusion, 82–3 free expression, 6, 18, 67, 95–6 limitation, 194 moral context, 140 proportionality, 103–4 rights infringements, 121, 122 scope, 125, 127, 128

free speech absoluteness, 141–2 proportionality, 103–4 freedom from slavery, 25, 40 freedom of conscience, 22 freedom of profession, 94 further rights limitation, 165 Germany Basic Law, 61 Federal Constitutional Court, 94, 95 Habermas, Jürgen, 15, 42, 116 hate propaganda, 6, 18 health warnings on tobacco products, 94–5 Horev v. Minister of Transportation, 114 House of Lords, 74 human rights, 7, 8, 15 actualization, 36 constitutional negotiations, 29–30 democracy, 22, 26, 35 principle, 21–3 privacy rights, 24 imprisonment, 164 incitement to violence, 6 individual rights, 116 inflammatory speech, 6 infringements of rights, 56, see rights infringements interest identification weighting, 105–10 internal limitation of rights, 163–4, 166 international charters of rights, 1, see charters of rights invalid principles, 105 Israel Basic Law, 134 Supreme Court, 114 judges, see judicial review; judiciary judicial review, 201–12 basis, 203–7 limitation clauses, 207–12

index political legitimacy, 205–6 underdeterminacy of rights, 205 judiciary, 65 constitutional meaning, 31 constitutional re-negotiations, 52 interest balancing, 106 judge’s role, 111 proportionality principle, 82, 106, 107–9 rights justification, 201–12 rights limitation, 63–5 rights specification, 148 role, 169 justification of rights limitation, 198–201 Law of Balancing, 78–80 legal validity, 16 legislation, 149, 152 balance, 4 commensurability, 100 constitutional rights, 156–60 judicial review, 201–12 political process, 172–3 proportionality, 4, 102, 118 rights infringements, 5, 120 rights interference, 70–1 rights violation, 85 technical–legal reasoning, 170 three-term relationships, 159 legislature authority, 178–9 citizens, 20, 154, 155 constituted authority, 44 constitutional activity, 46–7 constitutional meaning, 31 constitutional re-negotiations, 44–5 constitutional rights, 32 democracy, 36, 148 forum of justification, 150–5 human rights, 23 incommensurability, 179 notwithstanding clauses, 49–51 political authority, 154–5 political legitimacy, 175 practical reasoning, 170 rights construction, 168–73

229

rights limitation, 8–9, 11, 148–60, 175–6, 194, 214–17 justification, 198–201 rights violation, 3 role, 169, 174 lexicon of rights, 5–6 liberty rights, 25, 67 limitation clauses, 124, 133–4, 148, 177, 214, 215 Australian Human Rights Act, 62 Canada Supreme Court, 71 Charter of Rights and Freedoms, 61 charters of rights, 204–5 comparative perspective, 59–65 constitutional rights, 7, 8–12 European Convention on Human Rights, 60–1, 72–3 further rights limitation, 165 German Basic Law, 61 judicial reviews, 207–12 jural structure, 159 justification, 208–12 New Zealand Bill of Rights, 61 rights limitation justification, 181–3 rights violation, 4 South African Bill of Rights, 61 United States Constitution, 59 limitation of rights, 1–9, 55, 118, see rights limitation living constitutionalism, 51–2 loyal opposition, 154 majority views, 156, 191, 200 Milton, John, 184 minimal impairment criterion, 76 moralization of rights, 138–41 moral–political discourse, 1 principles, 135 constitutional rights, 53 New Zealand aboriginal rights, 18 Bill of Rights limitation clauses, 61 rights limitation, 181 notwithstanding clauses, 49–51 Nozick, R., 116

230 optimization of rights, 68–9, 85, 91 Paradise Lost (Milton), 184 parliamentary democracy, 150–1 perjury, 6, 122 personality rights, 95–6 political authority, 37, 154–5 political debate, 185–93 political legitimacy, 14 constitution-making, 43 constitutions, 23–30 criterion, 36–8 degrees, 16–18 democratic states, 15–30 equiprimordial principles, 35 human rights, 22 illegitimate authority, 17 principle actualization, 35–6 principle reconciliation, 101 rights limitation, 147 political representation, 25 political speech, 122 press freedom, 95–6 principles moral–political discourse, 135 prisoner voting rights, 142 privacy rights, 24 profession freedom of, 94 property rights, 129, 131, 143 proportionality abstraction, 84 empirical evidence, 107 facts-based analysis, 81–3 inadequacies, 88 legislation, 4, 102 moral–political reasoning, 84 religious freedom, 113–14 rights infringements, 63–4 rights limitation, 58, 70–80, 85, 88 inquiry procedure, 71–2 rights optimization, 68–9 rule of law, 112 vocabulary, 90 protection of rights, 146 public debate, 185–93

index public interest balance, 79–80 importance, 79 rights limitation, 70, 72–5, 78, 85–6 public reason, 184 dynamism, 190–3 parameters, 184–93 regulation, 185–90 situating, 193–201 see also citizens publicity principle, 189 Quebec, 39, 50 rational choices, 99 Rawls, John, 15, 41, 42, 116, 189, 194 Raz, J., 40, 98, 153 reasonable limitations, 137 reasoning process, 160 balancing, 97–100 constitutional rights, 125–6, 128, 131–3, 135, 137–8, 139, 170, 214 received approach, see rights limitation religious freedom, 91–3, 113–14 revolutions, 48 rights boundaries, 6 definition, 5, 119–32 lexicon, 5–6 moral–political discourse, 1 vocabulary, 5–6 rights-claims, 56, 169, 193 rights infringements, 56, 85, 88, 119 evaluation, 70 justification, 129 proportionality, 63–4 rights interference classification, 79 intensity, 78–9 justification, 78 legislation, 70–1 levels, 79 rights limitation, 1–9, 213–17 balancing ad hoc/definitional, 80–5 incommensurability, 89–100

index citizens, 176–7, 200, 201, 209 construction, 160–73 contingencies, 144–5 definition, 118–32 degrees, 161–5 democratic activity, 147–80 interpretation, 160, 165 justification, 181–212 legislature, 148–60, 178–9 necessity assessment, 76–7 political legitimacy, 147 practical reasoning, 214 proportionality, 70–80, 85 abstraction, 84 fact-based analysis, 81–3 incommensurability, 89–100 inquiry procedure, 71–2 public interest objective, 72–5, 78, 79–80 public reason, 183–93 received approach, 55–86, 88–9, 213 deconstitutionalization of rights, 100–14 incommensurability, 89–100 optimization contingencies, 110–14 re-negotiations, 173–9 rights-claims evaluations, 169 specification, 123–32 suitability assessment, 75–6 types, 161–5 validity, 81 vocabulary, 63, 118 see also limitation clauses rights protection, 146 rights violation, 85, 119 rule of law, 112–08, 169

security of the person, 25 slavery freedom from, 25, 40 smoking health warnings, 94–5 South African Constitution amendments, 49 limitation clauses, 61, 134 rights limitation, 181 special measures, 143 specification of rights, 133–46 standing decisions, 40 state authority citizens, 188 political legitimacy, 15–30 proportionality, 104 succahs, 91–2 Sunday-closing legislation, 74 Sunstein, C. R., 204 Suresh v. Canada, 112 Syndicat Northcrest v Amselem [2004] 2 SCR 551 (Supreme Court of Canada), 91–3 Thayer, James Bradley, 209–10, 211 tobacco products 94–5 torture 111–12 triadic scale rights balancing, 93–4 United States Constitution, 11 amendments, 49 limitation clauses, 59, 63 Supreme Court 63 voting rights, 142, 171–2, 195

Sauvé v. Canada, 82–3 Schmitt, Carl, 18, 150, 151 search and seizure, 163

231

Waldron, J., 117, 152 weighting of interests, 105–10