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LEGISLATIVE AUTHORITY AND JUDICIAL POWER: A REVIEW OF "LEGISLATED RIGHTS: SECURING HUMAN RIGHTS THROUGH LEGISLATION".

It is axiomatic that the respective powers and relations of and between different governmental institutions are of continual and paramount concern in any constitutional democracy. Indeed, in any functioning government, there must be legislation, law enforcement, and adjudication. These functions may be performed by one, few, or many; they may be consolidated or separated. Most modern constitutional governments, largely out of concern for what may broadly be termed "human rights," instantiate a formal or quasi-formal separation between legislative and adjudicative functions, the former to make general policy, the latter--in John Marshall's phrase--"solely, to decide on the rights of individuals." (2)

In such a context, it is natural that there should be concern about how well (or badly) these institutions are doing what they are supposed to be doing, and further concern (and often controversy) about the precise contours of exactly what they are supposed to be doing. With the proliferation of written bills of rights in the modern era, all of which call for legal specification prior to application in individual cases, tension naturally has arisen concerning the respective roles of legislatures and courts in the process of specification. Although the interpretation of most modern bills of rights was designed initially to be a joint product of both legislative and judicial reasoning, many people have come to believe that decisions about human rights are mainly--if not solely--the province of courts.

Into this environment comes Legislated Rights, a seminal collection of essays by six authors challenging the increasingly-global judicialization of the human rights enterprise. I have often noted that collections of this kind tend to suffer from the defects of their virtues, (3) the main virtue being the presentation of an array of perspectives on some suitably large question, and the main vice being an almost inevitable loss of focus and cohesion incident upon the array of diverse perspectives. That cannot be said of this fine volume.

According to the book's preface, the six chapters following the introductory chapter "are intended to stand together, not like the chapters of an edited collection united by a set of related themes, but like the chapters of a single-authored monograph. For this reason, while each chapter specifies an author, the book as a whole is jointly authored." (4) More than any other edited collection that I can remember, the authors of this book have made good on their promise. Each chapter treats a distinct but critical facet of the book's central concern: the pressing need for a stronger legislative role in the advancement of human rights. I will summarize each chapter in order, letting the authors speak for themselves and interspersing my own comments as I go along.

In the introductory chapter, Gregoire Webber and Paul Yowell lay out the plan, structure, and basic presuppositions of the book. The most fundamental presupposition is the authors' employment of "central case analysis," which is characterized as a methodological point of view incorporating both philosophy and empirical analysis in order to understand not merely what legislatures in fact have done (and are now doing) but also what they ought to have done (and ought now to be doing) in accordance with their responsibility "to secure human rights as an integral part of promoting the common good of the political community in all of its complexity." (5) The common good is further defined as "that set of conditions that enable each and every member of the community to realise his or her development and wellbeing." (6) Since the common good cannot be most effectively advanced without legislation, and since human rights are integral to the common good, it follows that the advancement of human rights is a central reason for legislating.

The authors' focus on the "central case" of legislation deserves further comment. Focusing on the central case calls attention to the reasons for legislating, what legislatures are supposed to do, and why we have them in the first place. Good legislation changes the law prospectively in response to changing circumstances on the basis of sound moral reasoning and deliberation by representatives of the entire community in order to advance the common good. This approach may be contrasted with the all-too-common approach of institutional scholars that is preoccupied almost exclusively with institutional pathology. One of the unfortunate results of this approach is an increasing tendency to view pathological cases of institutional malfunctioning as "normal"--in the normative as well as the empirical sense. Acknowledging that this "critical view of legislatures is widespread," the authors nevertheless insist that "analysis goes astray if it grounds a theory of the legislature and legislating on what are in truth failures to exercise responsibly the distinctive capacities of the legislature; that is, failures to legislate well." (7) The authors go on to state that "[their] philosophical approach does not define away the problem of legislative failures, but it maintains that one best understands and appreciates those failures for what they are: failures to be what the legislature and legislation are supposed to be. (,,8)

In furtherance of this analysis, the authors put forward the book's central thesis that "[t]he legislature is well placed to secure and promote human rights." (9) Two false claims that inhibit proper understanding of the legislative role are then put forward and disputed: (1) "that the legislature's main function is to promote the general welfare by aggregating preferences or maximizing overall utility;" (10) and (2) "that the legislature, unlike the court, is institutionally biased toward majority interests and against minorities and is thus unfit to engage in principled decision-making about human rights." (11) Against these, the authors argue: "the legislature is capable of principled, reasoned deliberation, and the central case of legislative action consists in reasoned deliberation to promote the common good, which has as its concern the wellbeing and rights of all persons in community"; (12) and "that the legislature is not inherently biased against minorities and is fit to engage in principled decision-making about human rights."'

The authors then examine two additional false theses that lead to misunderstanding of the nature of human rights: (3) "that the legislature regularly and permissibly acts in opposition to human rights, since it must infringe rights to achieve other aims for the sake of the public interest"; (1) and (4) "that, with few exceptions, human rights are defeasible, because they are conditional on the weight of individual interests which of necessity must be balanced against other interests." (15) Against these, the authors argue: "sound legislation does not oppose human rights, but rather affirms the requirements of human rights, including by specifying the broad, goal-oriented standards included in human rights instruments into relatively precise legal form"; and "that the legislature is capable of securing human rights by specifying them in a form so that rights are not defeasible against countervailing interests or the general welfare." (17)

The claims noted above suggest that, in recent times, not only has the nature of legislation been misconceived, but also the nature of human rights. In chapter two, Gregoire Webber explores the fundamental error that lies at the root of this misconception: the increasing tendency to think of rights as abstractions standing apart from the concrete relations between persons that give abstract rights their practical meaning. (18) Webber rightly regards this tendency as a "philosophical regression" that departs in important ways from traditional jurisprudential thinking, which views rights as grounded in law. (19) Employing Hohfeldian analysis, (20) Webber expounds the currently prevailing view of rights (the "received view"), contrasting it with the richer tradition from which it departs. The received view tends to conceive rights as one- or two-dimensional, which are referred to by the authors as "one-term" or "two-term" rights. "One-term rights" as purely abstract entities ("x"), "brooding omnipresences" somewhat akin to Platonic essences (albeit misunderstood in typical modern fashion). (22) "Two-term rights" are relations between such an "x" and some individual or group claiming to be entitled to the purported advantages of "x" ("P has a right to x"). (23) "Three-term rights" are rights that correspond to duties owed to the rights-bearer by others in the community and thus require an action or forbearance on the part of those who owe the duty. (24)

It is only when rights are conceived as "three-term" that the full character of a system of rights emerges as a complex series of relations between persons involving claims, duties, liberties, powers, liabilities and disabilities. (25) In other words, "P has a right to x" if and only if Q has an obligation (by an act or forbearance) not to impair P's enjoyment of the right. Using this schema, Webber suggests some of the consequences of the contrasting ways of viewing rights. For example, the increasing tendency of some judges and lawyers to view rights as abstractions (e.g., "values" or "principles") has led to a corresponding notion that "each and everyone has the right to do whatever each and everyone wishes to do, including--as we will come to see--a right to be free of duties to respect the rights of others." (26) The ever-increasing abstraction of the modern view of rights has divorced the abstract concept of human rights from the concrete human relationships that give practical meaning to those rights. It has divorced rights from their traditional grounding in the Right (justice), (27) legal rights from natural rights, (28) rights from duties and from law, (29) and rights from their exercise. Webber concludes that, to have practical meaning, rights must be viewed as an interdependent complex of three-term relations (between two persons and an act) determined by positive law and informed by custom and tradition; because there is no blank slate, choices about the determination of rights have already been made, and new choices (changes in the law) about further determinations must cohere with those earlier choices in an ongoing process of legal development. (30)

To say that rights--viewed abstractly--require determination is to say that they are "underdetermined." That is, the "rights" declared in most bills of rights are drawn so broadly as to give little guidance to anyone pondering how to behave in relation to a rights-bearer in a given situation. To use a brutally simplistic example, all bills of rights declare that human beings have a "right to life," but that does not tell a medical practitioner whether a patient in a persistent vegetative state must be kept alive permanently at public expense. Laws must be promulgated to decide a vast array of such issues in order to vindicate the right to life for all persons over a whole society. This means that rights must be specified, authoritatively expounded in such a way as to provide specific guidance to large numbers of individuals about how to behave in different situations involving the right in question. Maris Kopcke turns to this issue in chapter three. According to Kopcke, a specified right is a right that entails the existence of a duty "to undertake specific conduct for the sake of somebody else's [the right-bearer's] well being." (31) A fully-specified three-term right will tell Q what action or forbearance must be done or omitted to vindicate P's right to x.

Since most of the rights declared in human rights instruments are of a highly general character and stated in universal terms, virtually all such declarations need to be specified in relation to the obligations they give rise to on the part of others in the community. They must be transformed into "truly action-guiding, practical, and ultimately actionable claims of right that take their place in a legally scripted network of just relations between persons." (32) Specifying human rights in this way requires the attainment of what Kopcke calls "specific convergence," the need for which arises "where some state of affairs required by justice can most effectively and fairly be brought about through the convergent conduct of a large number of persons, and that conduct could in principle follow any one of several available and appropriate but incompatible patterns." (33) For example, the avoidance of traffic collisions, which is required to realize the human rights to life and health, calls for "widespread practices of convergence following specific patterns that could have reasonably been different." (34)

Whereas the convergence required to determine which side of the road one must drive on might be settled once-and-for-all by a single decision, most efforts to specify rights will require "chains of specification" that are subject to modification over time ("dynamic specification"). (35) Kopcke elaborates one such chain, modeling the elaboration on the "System for Autonomy and Attention to Dependence" of the Spanish public healthcare system. (36) The elaboration demonstrates graphically the complex task of specifying a single dimension of the generic "right to health": the provision of healthcare to the needy. (37) The demonstration makes it clear that such care cannot be provided effectively and fairly absent a comprehensive legal regime comprising multiple actors and choices building upon one another and subject to revision over long stretches of time. Such a regime can be instantiated only by comprehensive legislation, by a system of positive law that is "the means of choice to specify rights." (38) Indeed, as Kopcke concludes, "[g]ood law-making is craftsmanship of human rights." (39) This is so because we can say, with Justinian, that "[j]ustice is an unswerving and perpetual determination to acknowledge all men's rights." (40) Thus the reason for specifying rights is to bring about justice, a condition in which the members of a society are fully "adjusted" to one another in the sense that each is prepared (or required) to render to others their due. (41)

In chapter four, Richard Ekins defends the proposition that the legislature is the institution best suited to secure, protect, and promote rights in law. (42) To accomplish this defense, it is necessary to challenge prevailing views about legislatures and courts as institutions involved in protecting rights. The dominant contemporary view of the legislative institution is that its main duty is to provide for the general welfare by aggregating preferences and enacting laws according to the will of the majority. This notion of the legislative function essentially disqualifies legislatures from deciding human rights issues because they are said to be hopelessly chained to majority interests, and thus are constitutionally incapable of safeguarding the rights of individuals and minorities. As a result, for protection of human rights, we must look to other institutions--primarily to the courts. According to this widely-shared view, legislatures are "forums of policy," engaging in utilitarian calculation to advance the "greatest good for the greatest number" whereas courts are "forums of principle," checking and modifying the legislatures' calculation by enforcing human rights. (43)

This "dual forum" approach--particularly Ronald Dworkin's version of it--is masterfully critiqued by Ekins, who demonstrates that the approach is wrong on virtually every count. First, it is wrong in its assessment of legislative capacity. Although legislatures do consider constituency preferences (as they should in a representative democracy), they are not bound by them and are quite capable of overriding majority preferences in favor of principle (as they also should). At the collective level, though legislators probably wish for stable majority preferences to aggregate, anyone who has studied legislative voting knows that shifting coalitions of minorities--not stable majorities--are the rule rather than the exception. Second, the Dworkinian approach is wrong in its view of the legislative function, which reflects the reasons for having a legislature in the first place. As Ekins points out, no one would choose to institute a legislature to "maximize preference satisfaction." (44) Rather, everyone expects legislatures to advance the common good, which includes promoting and protecting human rights. And we all expect them to do this only after extensive deliberation about all the reasons for and against making or changing the law.

Perhaps the most unfortunate effect of the dual-forum approach is its encouragement of the idea that violations of human rights are acceptable so long as the violation advances the general welfare to a sufficient degree. In the United States, we are familiar with this sort of reasoning in the Supreme Court's various "balancing" tests, in which individual rights may be overridden by "compelling state interests" and the like. Europeans are familiar with the phenomenon in the employment of two-stage "proportionality review" by the courts, in which the court first decides whether a right has been abridged, and then whether the abridgment is justified. (45) Ekins's response to this is worth quoting in full:
The legislature should not attempt to balance the common good against
the rights of any member of the community. Any such attempt at balance
would be incoherent. The reason for this is not that rights do not
place moral limits on the legislator (and all authorities)--they
do--but rather that rights are constitutive elements in the common
good, such that reasonable reflection on the common good involves
judgment about what persons are entitled to. The common good, which is
the set of conditions under which members of the community are able to
flourish, consists in large part of the securing to each person that to
which each is entitled from all other persons. (46)


Since rights are constitutive of the common good, and the legislature's task is to advance that good, the legislature is not entitled to exploit or harm some individual(s) in order to advance a "greater good." This means that legislatures must engage in reasoned deliberation about rights when determining how the law should be changed in response to changing circumstances to advance the common good. They are not entitled merely to "make policy" (whatever that means) and leave the protection of rights to other institutions, such as courts. Although courts may legitimately assist in the effort to promote human rights by protecting the rights of individuals in cases before them, they cannot do this in comprehensive fashion because they can only act when cases come before them and are (or should be) constrained by existing legal doctrine. Conversely, legislatures are free to act whenever they choose and have the available resources to study, reason and deliberate about complex problems and formulate comprehensive solutions. (47) As Ekins warns, though constitution-makers may choose to limit law-makers via judicial review, great caution is required lest self-government be impaired, for "judicial review unmoored from past commitments of the political community undercuts the capacity of a free people to rule itself." (48)

In chapter five, Paul Yowell shows why human rights require implementation through legislation. Yowell first examines the Universal Declaration of Human Rights, demonstrating that the Declaration (and most other bills of rights) lack "specific legal content" and are addressed not to courts, but "to political institutions generally and indeed to every person." (49) These documents mostly speak in ethical terms, rather than legal terms, outlining basic values such as dignity, security, equality and liberty. (50) However, these documents do not specify how basic values are to be realized in any given society. In fact, the statement of these values in the Universal Declaration is an invitation to legislate, as was intended by its drafters. (51) It was not designed to be "a toolkit for litigating individual cases or advancing special interests." (52) I would add that the same may be said of the American Bill of Rights, as is suggested by the virtual non-involvement of United States courts in its interpretation until the 20th century. The fundamental difference between legislated rights and the abstract general rights stated in the Bill of Rights is that the former are three-term rights that specify a relation between two persons and an act, whereas the latter are two-term rights that merely assert the possession of a "right" by a person. (53)

After a careful analysis of the Universal Declaration, Yowell continues the critique of the Dworkinian theory of rights that began in the previous chapter, by contrasting legislated rights with Dworkin's theory of "rights as trumps," (54) conceived as shields possessed by individuals entitling them to avoid the application of a law promoting the general welfare. (55) As Yowell explains, in this view, there is an "intrinsic opposition between rights and the general welfare," (56) and human rights are therefore defeasible, always subject to being overridden by a stronger argument based on the general welfare. (57) Though Dworkin sometimes suggests otherwise, Yowell shows that his theory is really a "balancing" model that regards human rights as defeasible and subjects rights to a process akin to proportionality review, as practiced by European courts (or "balancing" as practiced by American courts). (58) The conception of rights embodied in such a process effectively destroys their universality. It denies their integral character as constitutive of the common good, by converting them into mere "interests" (59) liable to be outweighed by heavier interests. In short, this view diminishes rights "to the point of vanishing." (60)

Finally, Yowell looks at an historical example that is often touted as illustrative of the reason why protection of human rights should be left to the courts. One of the most common arguments for judicial supremacy in the protection of rights is that legislatures cannot be trusted to protect minority rights because their members are beholden to majorities for their election and re-election. (61) The most important example of protecting minority rights in the United States is the dismantling of racial segregation in the South, supposedly brought to an end by the United States Supreme Court in Brown v. Board of Education (62) in 1954 after a century of legislative failures. (63) Indeed, the Brown case has arguably become the most iconic constitutional case in American legal history. Nonetheless, Yowell demonstrates that the usual historical narrative surrounding Brown is a myth. (64) First, schools in the South remained almost completely segregated until Congress enacted three laws in 1964 and 1965. (65) A decade later, southern schools were still almost completely segregated. (66) Second, Yowell notes that the racial situation purportedly necessitating the Brown decision was at least in part caused by the Supreme Court itself, which had previously invalidated or emasculated a whole series of Civil Rights Acts in the 1860s and 1870s, and established the "separate but equal" doctrine in the 1890s that turned out to be the self-inflicted wound supposedly healed in Brown. (67) In truth, the historical record on racial segregation in the United States demonstrates that advancing minority rights requires legislation--not judicial supervision.

In chapter six, Francisco J. Urbina delves further into the question of the relative competence of legislatures and courts to advance human rights, and into the more specific issue of how legislation should aid human rights adjudication. (68) According to Urbina, the currently-dominant view of human rights adjudication "espouses a particularly negative view of the role of legislation and of legal authority, coupled with a positive evaluation of vague human rights standards and unconstrained moral reasoning by judges." (69) This view has now become "the global orthodoxy in legal academia and practice." (70) Based on an undervaluation of legal authority and a corresponding overvaluation of judicial discretion in human rights adjudication, it has led to what has been called a "culture of justification," in which every governmental exercise of authority must be justified and every citizen affected by a law is empowered to demand that justification. (71) In such a culture, rights are conceived not as three-term relations between persons, but as two-term entitlements or "higher values" (7) against which all authoritative enactments (whether legislative or executive) are to be measured (usually by courts). (73) Such an approach encourages massive over-reliance on judicial discretion and ignores the extent to which "legislation, precedent, and other authoritative directives" can and should aid and constrain adjudication.

Urbina identifies a number of problems that may arise when courts try to decide cases without sufficient guidance from the law, and the identification of these problems points the way to an understanding of how the law can provide the guidance that judges need. For example, technical legal categories are needed to help judges reduce complex questions into more manageable ones, to avoid undue influences (or the appearance thereof), to avoid reliance on emotion, and to avoid subjecting a litigant to the arbitrary will of a single official (or a panel thereof). (75) The last point is crucial because judicial decisions need legitimacy. As Urbina notes, the strongest source of legitimacy in democratic societies is that which comes from lawmaking by an elected legislature.

As controversial as Urbina's plea for legally-directed adjudication might appear to be in today's political environment, it is hardly novel. Even before the advent of elected legislatures, Thomas Aquinas quoted Aristotle who said: "It is better that law direct all things than that they be left to the decisions of judges." (77) And then St. Thomas explained why:
First, indeed, it is easier to find the few wise persons sufficient to
establish right laws than the many wise persons necessary to judge
rightly about particular matters. Second, lawmakers consider over a
long time what to impose by law, but judges reach decisions about
particular deeds as cases spontaneously arise. And human beings can
more easily perceive what is right by considering many instances than
they can by considering only one deed. Third, lawmakers decide in
general and about future events, but presiding judges decide current
cases, and love or hatred or covetousness affects such decisions. And
so their decisions are perverted.

Therefore, since few embody the justice required of a judge, and since
that justice can be perverted, it was necessary that law determine,
whenever possible, what judges should decide, and commit very few
matters to the decisions of human beings. (78)


In fact, it is the "culture of justification" and its encouragement of universal judicial supremacy in human rights litigation that is novel. It has freed judges to engage in unconstrained moral reasoning in human rights cases, free from the constraints of text, history and tradition, and it threatens to paralyze the legislative process in this important area of the law. It is interesting to speculate on the extent to which such an approach is even sustainable in the long run. After all, courts that engage in legally undirected adjudication may end up sawing off the branch they are sitting on. Urbina notes that this approach "trades on the strengths and virtues of judicial authority, all the while undermining the practices that sustain them." (79) The truth is, judges are lawyers, and lawyers are trained to find and apply the law. (80) They are not trained to engage in unconstrained moral reasoning. (81) This means that, for the most part, lawyers are unqualified to make decisions about human rights in the absence of generally applicable, prospectively promulgated, clear, coherent, and stable legislation. (82) Such legislation cannot be enacted by courts.

Courts are not merely unqualified to make decisions in the absence of good legislation; they are also unauthorized to do so. Urbina points to an interesting aspect of arguments advanced by proponents of dual-forum or culture-of-justification approaches to human rights decisions: their concession of the importance of text and tradition for securing legitimacy for those decisions. (83) The "legitimacy" sought after by these proponents, however, turns out to be only "outward" legitimacy, useful merely in securing "the public status of the court." (84) Urbina quotes one such proponent:
Perhaps the secret of proportionality based judicial review is that it
succeeds primarily because its true nature ... remains publicly
unacknowledged. Instead the institutions, rituals and the way that
opinions are structured and provisions are cited emphasize
institutionally and symbolically the connection to the ordinary
"legalistic" practice of law. (85)


Even Ronald Dworkin acknowledges the bait-and-switch tactic that appears to be necessary in order to sustain judicial supremacy when he notes "a 'striking mismatch' between how widely the moral reading of the [American] constitution is used by judges, and how little it is acknowledged by those same judges and commentators." (86) It is not hard to see why intellectual dishonesty is required here because an act of judicial discretion unguided by law is a product of the "unbounded will of an official" and is morally repugnant. (87) Such an act lacks authority. To lack authority means to be unauthorized, and people do not like being governed by officials who are not authorized to do what they are doing in the manner in which they are doing it. Such exercises of raw power must be veiled and remain "publicly unacknowledged" in order to give the appearance that decisions are grounded in the law when they are not.

In chapter seven, Bradley W. Miller raises an issue that is bound to have occurred to any careful reader of the preceding chapters in this book--given the necessity of grounding rights in legislation, and the problems presented by courts when making decisions not fully grounded in law, is judicial review justified at all? (88) We are all aware that legislatures enact bad laws. Do courts provide the best fora for correcting or overruling bad legislation? Miller's answer to this question is equivocal: since judicial review is not an "unqualified good," but "creates risks that unjust and otherwise suboptimal decisions will be made in a political community," it "is not necessarily a sound response to the risk of non-central cases of legislating." (89)

Miller begins by examining several of the most prominent arguments in favor of judicial review. All are rooted in supposed pathologies of majoritarianism. They include alleged tendencies of legislatures to sacrifice individual rights to collective interests, to pander to the electorate for the sake of members' re-election, and, more generally, to tyrannize over powerless minority groups (especially "discrete and insular" ones). (91) While there are nuggets of truth in each of these arguments, Miller suggests that they all rest on misunderstanding of the legislature's central role, relying instead upon isolated pathological instances of legislative behavior for which the empirical evidence is not altogether convincing. (92)

Moreover, as Miller notes, most 21st century human rights adjudications in developed nations have not been about claims brought by "singular and insular minorities," (93) but rather have been claims brought by persons who have been prevented by the state from "acting in ways that reflect their chosen means to pursue their self-understandings of the good." (94) The rights claimed in this class of cases are usually advanced as a right to "autonomy"--an individual right to "choose" whatever act or behavior that is prohibited by the law being challenged. (95) Employing examples of recreational drug use, prostitution, and euthanasia, Miller examines the arguments of Ronald Dworkin and others who charge that legislatures that ban such practices do so out of "contempt" (96) for those who engage in the banned activity, or simply to enforce "conventional morality," (97) which itself is said to reflect tyranny of the majority. (98) Miller explains why it is generally wrong to attribute simple malice or irrationality to a legislature. (99) There are strong moral reasons for a legislature to enact laws prohibiting any of the above-mentioned acts. (100) Indeed, attending to the central case of legislating calls for engagement with those reasons. Miller concludes that:
[T]he conditions for the tyranny of the majority argument are present
only in a small class of cases: those cases where there is a
marginalized group identified by a personal characteristic.
Contemporary rights litigation, by contrast, is increasingly a matter
of providing a second forum for arguments that have failed
legislatively, and have failed for reasons that have nothing to do with
contempt or disregard for any person or group. (101)


Miller brings the volume to a close with a brief survey of problems presented by the institution of judicial review in societies that employ it as a way of curbing injustice in a political community. (102) Most of these "pathologies" are familiar to students of law and courts, and they include institutional limitations such as deficient information-gathering resources, accelerated and compressed timelines, necessity of reliance on evidence submitted by parties, and lack of jurisdiction beyond particular disputes and the questions presented therein. (103) These constraints are closely related to limitations of judicial reasoning, which, as Miller notes, is paradigmatically different from legislative reasoning, because the reasons for legislating are different than the reasons for judging. (104) Legislatures exist to change the law for the sake of the common good; courts exist to do justice for individuals in concrete cases. (105) Because the court is confronted directly with real, concrete individuals aggrieved by a law, but only indirectly with persons whose good the challenged law was meant to advance, there is a "pathology of concreteness"--a natural bias in favor of the aggrieved party and against the government defending the law--which has no "singular defendant who embodies and vividly illustrates the concerns animating legislative intervention." (106) It must be remembered that, in the central case of legislating, the chief concern animating legislative intervention is the common good. Problems also occur when courts are confronted with cases involving complex social problems that require evaluation and analysis of social science data, a task that judges are, for the most part, ill-equipped to do. (107)

Finally, Miller calls attention to another problem with judicial reasoning that has surfaced in recent years, a problem that calls into question once again the propriety of allowing judges to decide human rights cases on the basis of unconstrained moral reasoning unbounded by standing law--the tendency of courts in human rights cases to decide such cases in accordance with "anti-perfectionist liberalism," defined by Miller as the principle that "government must be neutral on what constitutes the good life." Since the very purpose of legislation is to advance the common good, it is easy to see that this principle, if really taken seriously, has the potential to neutralize most legislation. But it should not be taken seriously, for as anyone who has made a serious study of ethics knows, anti-perfectionist liberalism is far from being the only morality that can be justified by reason.

American court watchers will likely think of the famous echo of the principle of governmental neutrality in morals in the "joint opinion" of Planned Parenthood of Southeastern Pennsylvania v. Casey. (110) The Court stated, "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they performed under compulsion of the State." (111) This embarrassingly incompetent flirtation with moral philosophy illustrates the folly of allowing judges to base decisions on unconstrained moral reasoning. Not only were there no "beliefs" formed under "compulsion of the State" involved in this case, it is not generally agreed that "personhood" is defined by such beliefs in the first place--except perhaps among proponents of the highly controversial anti-perfectionist liberal ideology, of which controversy the three judges who authored the opinion do not seem even dimly aware.

Indeed, contemporary liberalism, in its seemingly limitless quest for absolute individual autonomy, has eroded many of the legal traditions, customs and institutions that once provided the groundwork for its very existence. Speaking of modern liberalism in a wider sense, T. S. Eliot said this in 1939:
That Liberalism may be a tendency towards something very different from
itself, is a possibility in its nature.... By destroying traditional
social habits of the people, by dissolving their natural collective
consciousness into individual constituents, by licensing the opinions
of the most foolish, by substituting instruction for education, by
encouraging cleverness rather than wisdom, the upstart rather than the
qualified, ... Liberalism can prepare the way for that which is its own
negation: the artificial, mechanised or brutalized control which is a
desperate remedy for its chaos." (112)


In striking confirmation of Eliot's foreshadowing, the United States Supreme Court has, during the past several decades, advanced the erosion of customs, traditions and institutions in the United States--especially in cases involving what is usually termed "personal autonomy." It has done this through its tacit adoption of a so-called "living constitution," which has effectively overridden key features of the checks and balances system enshrined in the Founders' Constitution in favor of constitutional judicial supremacy. Judicial supremacy, under the pretended authority of the living constitution, has in turn provided an avenue for so-called "progressive" socio-political elites who have not, in the main, been able to persuade legislatures to adopt their preferred programs, to circumvent the democratic process and get their favored policies imposed on the public by the courts. As Eliot warned and as this volume suggests, a similar movement is ongoing in Europe and elsewhere.

In conclusion, this is an immensely important book, and long overdue. It brings together the disciplines of law, ethics, and political science in order to show clearly the appropriate roles of legislatures and courts in democratic societies. Its use of central case analysis is refreshing and constructive. It makes a powerful case for a refocusing of scholarly effort in the field of legislative studies--which for years has been characterized by over-reliance on public choice and behavioral approaches. The clear distinction made by the authors between the central case and pathological cases of legislation is perhaps the book's most important contribution. In a fallen world, pathology fascinates, so we study it. Often, we study it too much, in the process forgetting that pathology is best understood as a reminder of the good from which it deviates.

The authors' analysis of rights is another singularly important contribution of the volume. The idea that rights are defeasible--subject to being over-ridden by such notions as "general welfare," "public interest," or "greater good"--diminishes human rights by destroying their universality. In fact, it threatens to destroy the very concept of rights as grounded in the Right, effectively reducing individual rights to mere "interests" that can then be balanced against other interests in a quantitative utilitarian calculation. In this connection, the authors' thorough and convincing critique of the "dual-forum" approach in human rights cases is a critically important contribution. Such a critique makes it clear that human rights cannot be adequately promoted and protected under a regime in which courts are their primary guardian. Thus, judicial supremacy--to the extent that it is thought to be justified by human rights issues--is not merely unwarranted, it is ineffectual.

That is why judicial supremacy is tragic. We are living in an age in which courts are widely thought to be the primary guardians of rights. As Adam MacLeod has noted in a recent review of this volume, judges nowadays frequently claim supremacy not only over legislatures, but also over the customs, traditions, and texts that comprise the common law, and even over the very constitutions that are the source of their authority. (113) Conversely, legislatures are thought by many to have only a weak or secondary duty to promote rights in legislation, let alone to regard rights as integral to the common good they are supposed to advance. Legislatures are normally composed of elected representatives. Naturally, representatives will attempt to do their jobs in accordance with what they believe their electorate thinks they are supposed to be doing, at least in large part. If we continue to think that courts can adequately protect our rights (when they really cannot), then our representatives will continue to think (or pretend to think) that we believe the same, and our rights will not be adequately protected. This is the real lesson of this book.

Legislated Rights deserves a wide audience. The authors have accomplished a rare feat and their stated goal from the outset: to write as a single author. Their volume is rich in learning, thorough in research, and draws from several fields of scholarly activity, including law and jurisprudence, moral and political philosophy, and empirical political science. Because of its wide range of sources, dense content, and terse style, those without some background in the diverse fields of enquiry listed above may find it a difficult read, but for those who master its teachings, the reward will more than repay the effort. My hope is that those who attend carefully to the central message of Legislated Rights will move forward with more studies, articles, essays, and books--both scholarly and popular--and work to teach lawyers, judges, politicians, and the public that promotion of human rights is integral to the common good and thus a primary responsibility of the legislature. Democracy requires no less.

Robert Lowry Clinton (1)

(1) Robert Lowry Clinton is Professor Emeritus, Department of Political Science, Southern Illinois University Carbondale. He is the author of Marbury v. Madison and Judicial Review (1989), God and Man in the Law: The Foundations of Anglo-American Constitutionalism (1997), and numerous articles in law reviews, political science journals, and popular publications.

(2) Marbury v. Madison, 5 U.S. (1 Cranch) 137, 170 (1803).

(3) Robert Lowry Clinton, Religion and Contemporary Liberalism, 92 AM. POL. SCI. REV. 697, 698 (1998) (book review).

(4) GREGOIRE WEBBER ET AL., LEGISLATED RIGHTS VIII (2018).

(5) Id. at 3-4.

(6) Id. at 3.

(7) Id. at 14-15.

(8) Id. at 15 (italics in original).

(9) Id. at 1.

(10) WEBBER ET At., supra note 4, at 4. The difficulty--if not impossibility--of maximizing general utility via aggregation of individual preferences in a democratic society has been well demonstrated in recent decades. See especially KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (1951). See also ROBERT LOWRY CLINTON, GOD AND MAN IN THE LAW: THE FOUNDATIONS OF ANGLO-AMERICAN CONSTITUTIONALISM (1997) (especially ch. 5). It is somewhat mysterious that, in spite of such demonstration, this well-nigh impossible task is nonetheless widely regarded as the primary function of a legislature.

(11) WEBBER ET AL., supra note 4, at 6-7.

(12) Id. at 6.

(13) Id. at 8.

(14) Id. at 10.

(15) Id. at 11.

(16) Id. at 10.

(17) WEBBER ET AL., supra note 4, at 12.

(18) Id. at 27

(19) See id. at 40.

(20) See id. at 39-41. See also WESLEY NEWCOMB HOHFELD, FUNDAMENTAL LEGAL CONCEPTIONS AS APPLIED TO JUDICIAL REASONING: AND OTHER LEGAL ESSAYS (Walter Wheeler Cook ed. 1919).

(21) See WEBBER ET AL., supra note 4, at 28-40.

(22) Id. at 39-40.

(23) Id. at 28-32.

(24) Id. at 40-45.

(25) Id. at 41. See also HOHFELD, supra note 20, at 26.

(26) WEBBER ET AL., supra note 4, at 34.

(27) Id. at [section] 2.6.

(28) Id. at [section] 2.8.

(29) Id.

(30) See id. at 51.

(31) "Id. at 56.

(32) WEBBER ET AL., supra note 4, at 56.

(33) Id. at 60.

(34) Id. at 63.

(35) Id. at 75.

(36) Id. at 76-82.

(37) Id. at 76.

(38) WEBBER ET AL, supra note 4, at 69.

(39) Id. at 84 (emphasis added).

(40) JUSTINIAN'S INSTITUTES 1.1, at 1 (Peter Birks & Grant McLeod trans., Cornell University Press 1987).

(41) See THOMAS AQUINAS, SUMMA THEOLOGICA II-II, Question 58, Article 1, reprinted in ON LAW, MORALITY, AND POLITICS (William P. Baumgarth & Richard J. Regan eds., Richard J. Regan trans., 2d ed. 2002).

(42) WEBBER ET AL., supra note 4, at 86.

(43) Id. at 87.

(44) Id. at 90.

(45) See id. at 198-200.

(46) Id. at 101.

(47) Id. at 94.

(48) WEBBER ET AL., supra note 4, at 112.

(49) Id. at 116.

(50) Id. at 119-120.

(51) See id. [section] 5.2.

(52) Id. at 119.

(53) See id. at [section] 5.3.

(54) WEBBER ET AL., supra note 4, at 133.

(53) Id. at 133-34.

(56) Id. at 134.

(57) Id. at 117.

(58) Id. at [section][section] 5.5-5.6.

(59) Id. at 136.

(60) WEBBER ET AL., supra note 4, at 117.

(61) Id. at 142.

(62) 347 U.S. 483 (1954).

(63) WEBBER ET AL., supra note 4, at 142-43.

(64) See id. at [section] 5.7.

(65) Id. at 143.

(66) Id

(67) Id. at 148-49.

(68) Id. at 153.

(69) WEBBER ET AL., supra note 4, at 154.

(70) Id. at 156.

(71) Id. at 156-60.

(72) Id. at 158.

(73) Id. at 152.

(74) Id. at 160.

(75) See WEBBER ET AL., supra note 4, at 162-65, 175.

(76) See id. at 166.

(77) AQUINAS, supra note 41, at 53.

(78) Id.

(79) WEBBER ET AL., supra note 4, at 168.

(80) Id. at 195.

(81) Id.

(82) Id. at 166. Urbina references Fuller's well-known criteria of law. See generally LON L. FULLER, THE MORALITY OF LAW 46-90 (Yale University Press rev. ed. 1969).

(83) Webber ET AL., supra note 4, at 169.

(84) Id.

(85) Id. (quoting Mattias Kumm, The Idea of Socralic Contestation and the Right to Justification: The Point of Rights-Based Proportionality Review, law & ETHICS of hum. RTS. 141, 174 (2010).

(86) Id. at 179. Here, Urbina refers to RONALD DWORKIN, FREEDOM'S LAW: the Moral Reading of the American Constitution 3-4 (Oxford University Press 1999) (1996).

(87) See Webber ET AL., supra note 4, at 164.

(88) Id. at 181-82.

(89) Id. at 200.

(90) Id.at l84.

(91) Id. at 183-88.

(92) Id. at 183-84.

(93) Webber et. al., supra note 4, at 188.

(94) Id. at 189.

(95) Id. at 188-89.

(96) Id. at 189.

(97) Id. at 191.

(98) See id. at 188-92.

(99) WEBBER ET AL., supra note 4, at 190.

(100) See id. at 190-92.

(101) Id. at 194.

(102) See id. at 194-200.

(103) Id. at 194-95.

(104) Id. 195-96.

(105) WEBBER ET AL., supra note 4, at 196.

(106) Id. at 196-97.

(107) Id. at 197-98.

(108) Id. at 199.

(109) Id.

(110) 505 U.S. 833,850 (1992).

(111) Id. at 851.

(112) T. S. ELIOT, CHRISTIANITY AND CULTURE: THE IDEA OF A CHRISTIAN SOCIETY AND NOTES TOWARDS THE DEFINITION OF CULTURE 12 (New York: Harcourt, Brace & Co. 1949) (1939).

(113) Adam J. MacLeod, How Legislatures Can Combat the Problem of Judicial Supremacy and Protect Human Rights, PUB. DISCOURSE (Sept. 24, 2018), https://www.thepublicdiscourse.com/2018/09/39380/.
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Title Annotation:Symposium on "Legislated Rights: Securing Human Rights Through Legislation"
Author:Clinton, Robert Lowry
Publication:Faulkner Law Review
Date:Sep 22, 2018
Words:7637
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