A philosophical argument for a bill of rights

British Journal of Political Science

Volumn 30, Issue 1, 2000, Pages 77-98

  Fabre, Cécile ^a  

^a NUFFIELD COLLEGE   (United Kingdom)

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[No Author keywords available]

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EID: 0034406880     PISSN: 00071234     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0007123400000041     Document Type: Article

References (55)

1. See, e. g., Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 370, and John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 72.
2. See, e. g., Joseph Raz, The Morality of Freedom (Oxford: Clarendon Press, 1986), p. 370, and John Rawls, Political Liberalism (New York: Columbia University Press, 1993), p. 72.
3. This is not a purely academic debate. Increasingly one hears arguments in favour of a bill of rights in Britain. See, e.g., Ronald Dworkin, A Bill of Rights for Britain (London: Chatto and Windus, 1990); 'It's all over for the old constitution', The Independent, 30 January 1995, p. 13.
4. This is not a purely academic debate. Increasingly one hears arguments in favour of a bill of rights in Britain. See, e.g., Ronald Dworkin, A Bill of Rights for Britain (London: Chatto and Windus, 1990); 'It's all over for the old constitution', The Independent, 30 January 1995, p. 13.
5. Raz, The Morality of Freedom, pp. 255-63.
6. See, e.g., John H. Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980); Richard Arneson, 'Democratic Rights at National and Workplace Levels', in David Copp, Jean Hampton and John Roemer, eds, The Idea of Democracy (Cambridge: Cambridge University Press, 1993), pp. 118-48.
7. See, e.g., John H. Ely, Democracy and Distrust (Cambridge, Mass.: Harvard University Press, 1980); Richard Arneson, 'Democratic Rights at National and Workplace Levels', in David Copp, Jean Hampton and John Roemer, eds, The Idea of Democracy (Cambridge: Cambridge University Press, 1993), pp. 118-48.
8. The definition of a right that I give here is of course inspired by Raz's definition in The Morality of Freedom, p. 166.
9. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied to Judicial Reasoning (New Haven, Conn.: Yale University Press, 1919). In The Morality of Freedom, Raz claims that his analysis of rights can be extended so as to include these notions (Raz, The Morality of Freedom, p. 168, fn. 1).
10. Wesley N. Hohfeld, Fundamental Legal Conceptions as Applied to Judicial Reasoning (New Haven, Conn.: Yale University Press, 1919). In The Morality of Freedom, Raz claims that his analysis of rights can be extended so as to include these notions (Raz, The Morality of Freedom, p. 168, fn. 1).
11. See Peter Jones, Rights (Basingstoke, Hants: Macmillan, 1994), p. 24; David Lyons, 'The Correlativity of Rights and Duties', Nous, 4 (1970), 45-57, pp. 50-1; Rex Martin, A Theory of Rights (Oxford: Clarendon Press, 1993), p. 30; Herbert L. A. Hart, 'Bentham on Legal Rights', in Alfred W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973), pp. 198-200.
12. See Peter Jones, Rights (Basingstoke, Hants: Macmillan, 1994), p. 24; David Lyons, 'The Correlativity of Rights and Duties', Nous, 4 (1970), 45-57, pp. 50-1; Rex Martin, A Theory of Rights (Oxford: Clarendon Press, 1993), p. 30; Herbert L. A. Hart, 'Bentham on Legal Rights', in Alfred W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973), pp. 198-200.
13. See Peter Jones, Rights (Basingstoke, Hants: Macmillan, 1994), p. 24; David Lyons, 'The Correlativity of Rights and Duties', Nous, 4 (1970), 45-57, pp. 50-1; Rex Martin, A Theory of Rights (Oxford: Clarendon Press, 1993), p. 30; Herbert L. A. Hart, 'Bentham on Legal Rights', in Alfred W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973), pp. 198-200.
14. See Peter Jones, Rights (Basingstoke, Hants: Macmillan, 1994), p. 24; David Lyons, 'The Correlativity of Rights and Duties', Nous, 4 (1970), 45-57, pp. 50-1; Rex Martin, A Theory of Rights (Oxford: Clarendon Press, 1993), p. 30; Herbert L. A. Hart, 'Bentham on Legal Rights', in Alfred W. B. Simpson, ed., Oxford Essays in Jurisprudence, 2nd series (Oxford: Clarendon Press, 1973), pp. 198-200.
15. For the distinction between judges' competence and legitimacy, see Martha Jackman, 'The Protection of Welfare Rights Under the Charter', Ottawa Law Review, 70 (1988), 315-38. For a distinction between institutional and moral arguments in favour of constitutional rights, see Raz, The Morality of Freedom, p. 257. Although I distinguish the question of competence from the question of legitimacy, they can be interconnected. If judges badly affect people's rights because they are incompetent to deal with them, then one might conclude that they do not have the legitimacy to adjudicate them.
16. For the distinction between judges' competence and legitimacy, see Martha Jackman, 'The Protection of Welfare Rights Under the Charter', Ottawa Law Review, 70 (1988), 315-38. For a distinction between institutional and moral arguments in favour of constitutional rights, see Raz, The Morality of Freedom, p. 257. Although I distinguish the question of competence from the question of legitimacy, they can be interconnected. If judges badly affect people's rights because they are incompetent to deal with them, then one might conclude that they do not have the legitimacy to adjudicate them.
17. I am aware that to use the word 'right' in the plural here is stylistically odd, and one might expect to read 'we all have an equal right against private individuals that they respect our autonomy'. However, as I do not wish to take a stance as to whether we have a right to autonomy, I use the plural, so as to convey as concisely as I can the idea which this first claim expresses, to wit, that there are things we must have in order to be autonomous, such as certain freedoms and material goods, and that we have rights to them.
18. The conception of autonomy I am sketching out here and the reasons I put forward as to why we should value it are standardly liberal. See, e.g., Rawls, Political Liberalism, p. 72; Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge: Cambridge University Press, 1988).
19. The conception of autonomy I am sketching out here and the reasons I put forward as to why we should value it are standardly liberal. See, e.g., Rawls, Political Liberalism, p. 72; Gerald Dworkin, The Theory and Practice of Autonomy (Cambridge: Cambridge University Press, 1988).
20. Jones, Rights, p. 128.
21. For a similar account of the links between private and public morality, see William Nelson, On Democracy (London: Routledge and Kegan Paul, 1980), pp. 100ff; and Thomas Nagel, 'Ruthlessness in Public Life', in Thomas Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1979).
22. For a similar account of the links between private and public morality, see William Nelson, On Democracy (London: Routledge and Kegan Paul, 1980), pp. 100ff; and Thomas Nagel, 'Ruthlessness in Public Life', in Thomas Nagel, Mortal Questions (Cambridge: Cambridge University Press, 1979).
23. This relative clause is important. If you kill someone, your interest in remaining free, which is derived from your interest in autonomy, is not important enough to claim that the state is acting in a morally wrong way if it locks you up.
24. For points along these lines, see Thomas Nagel, Equality and Partiality (Oxford and New York: Oxford University Press, 1991), pp. 84, 99-101.
25. See Jones, Rights, pp. 201-2, on the need for such a common metric, and Alan Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996), pp. 45ff., for the adoption of agency as such a common metric. Both Jones and Gewirth seem to think that this common metric must be used to adjudicate conflicts between rights, whereas I think that it should be used to adjudicate conflicts between interests so as to decide which interests are important enough to be protected by rights. (For a fuller discussion of conflicts between rights, see my 'Constitutionalising Social Rights', Journal of Political Philosophy, 6 (1998), 263-84.)
26. See Jones, Rights, pp. 201-2, on the need for such a common metric, and Alan Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996), pp. 45ff., for the adoption of agency as such a common metric. Both Jones and Gewirth seem to think that this common metric must be used to adjudicate conflicts between rights, whereas I think that it should be used to adjudicate conflicts between interests so as to decide which interests are important enough to be protected by rights. (For a fuller discussion of conflicts between rights, see my 'Constitutionalising Social Rights', Journal of Political Philosophy, 6 (1998), 263-84.)
27. See Jones, Rights, pp. 201-2, on the need for such a common metric, and Alan Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996), pp. 45ff., for the adoption of agency as such a common metric. Both Jones and Gewirth seem to think that this common metric must be used to adjudicate conflicts between rights, whereas I think that it should be used to adjudicate conflicts between interests so as to decide which interests are important enough to be protected by rights. (For a fuller discussion of conflicts between rights, see my 'Constitutionalising Social Rights', Journal of Political Philosophy, 6 (1998), 263-84.)
28. Here I follow Thomas Christiano's brilliant argument in The Rule of the Many: Fundamental Issues in Democratic Theory (Boulder, Colo.: Westview Press, 1996), pp. 69ff.
29. This does not apply to arguments for bills of rights which rest on other values than autonomy. In such cases, one will have to look for a different metric.
30. Clearly, if you assault me and if the only way I can defend myself is by knocking you unconscious, I am allowed to do it, thereby using my body to harm your autonomy. For in assaulting me you have forfeited your right against me that I do not use my body in such a way. Similarly, citizens and members of the legislature are allowed to use their vote to pass laws permitting certain constraints on people's autonomy, such as prison sentences. See fn. 13 for a similar point.
31. H. L. A. Hart, 'Are There Any Natural Rights?' Philosophical Review, 64 (1955), 175-91, p. 178.
32. See Martin, A System of Rights, pp. 83 and 85.
33. I do not wish to suggest that legal rights are as a matter of fact always backed up by sanctions. In fact, as Raz has shown, some legal rights, for instance some of the legal rights we have against state officials, are not backed up by sanctions (see Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), pp. 240-1). will not address here the question whether these rights are really legal rights. (See Jones, Rights, pp. 39-44, for comments on this issue.) (F'note continued) of those rights. However, citizens do not have a right to lodge complaints to the Council. In most countries where rights are protected by the constitution, though, rights-holders are endowed with such a power. As a result, discussions about constitutional rights are nearly always discussions of American-style judicial review.
34. I do not wish to suggest that legal rights are as a matter of fact always backed up by sanctions. In fact, as Raz has shown, some legal rights, for instance some of the legal rights we have against state officials, are not backed up by sanctions (see Joseph Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1994), pp. 240-1). will not address here the question whether these rights are really legal rights. (See Jones, Rights, pp. 39-44, for comments on this issue.) (F'note continued) of those rights. However, citizens do not have a right to lodge complaints to the Council. In most countries where rights are protected by the constitution, though, rights-holders are endowed with such a power. As a result, discussions about constitutional rights are nearly always discussions of American-style judicial review.
35. As a matter of practice, it may well be the case that the courts, for various reasons, are incompetent to protect rights, be they constitutional or legal. As I said in the introduction to this article, I refrain from discussing these institutional issues.
36. Stephen Holmes, 'Precommitment and the Paradox of Democracy', in Jon Elster and Rune Slagstad, eds, Constitutionalism and Democracy (Cambridge: Cambridge University Press, 1988), pp. 195-240, at p. 226.
37. Jones, Rights, pp. 222-6; Jeremy Waldron, 'Rights and Majorities: Rousseau Revisited', in Jeremy Waldron, Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University Press, 1993), pp. 3924-20, at p. 406.
38. Jones, Rights, pp. 222-6; Jeremy Waldron, 'Rights and Majorities: Rousseau Revisited', in Jeremy Waldron, Liberal Rights: Collected Papers 1981-1991 (Cambridge: Cambridge University Press, 1993), pp. 3924-20, at p. 406.
39. This objection was put to me at a seminar in Oxford in April 1995.
40. See Nagel, Equality and Partiality, p. 88. In saying that people often support a law for prudential reasons or because they respect the law as such, and not because they agree with its content, I am not committed to saying that they are right to support it for those reasons. I am simply saying that in so far as there may not be any genuine support for the rights protected by the bill in the absence of a bill, and in so far as people might nevertheless desist from resisting the bill of rights, arguing for such a bill does make sense.
41. Jeremy Waldron, 'A Right-Based Critique of Constitutional Rights', Oxford Journal of Legal Studies, 13 (1993), 18-51; James Allan, 'Bills of Rights and Judicial Power - A Liberal Quandary', Oxford Journal of Legal Studies, 16 (1996), 337-52.
42. Jeremy Waldron, 'A Right-Based Critique of Constitutional Rights', Oxford Journal of Legal Studies, 13 (1993), 18-51; James Allan, 'Bills of Rights and Judicial Power - A Liberal Quandary', Oxford Journal of Legal Studies, 16 (1996), 337-52.
43. Waldron, 'A Right-Based Critique of Constitutional Rights', p. 28
44. Waldron, 'A Right-Based Critique of Constitutional Rights', p. 28
45. Waldron, 'A Right-Based Critique of Constitutional Rights', p. 28. See also Allan, 'Bills of Rights and Judicial Power - A Liberal Quandary', p. 345.
46. Waldron, 'A Right-Based Critique of Constitutional Rights', p. 28. See also Allan, 'Bills of Rights and Judicial Power - A Liberal Quandary', p. 345.
47. See Waldron, 'A Right-Based Critique of Constitutional Rights'; James Tully, Strange Multiplicities (Cambridge: Cambridge University Press, 1995), p. 30; Richard Bellamy, 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', Political Studies, 44, Special Issue (1996), 436-56; Richard Bellamy and Dario Castiglione, 'Constitutionalism and Democracy - Political Theory and the American Constitution', British Journal of Political Science, 27 (1997), 595-618; and 'The Communitarian Ghost in the Cosmopolitan Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe', in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, Surrey: Avebury, 1996), pp. 111-29.
48. See Waldron, 'A Right-Based Critique of Constitutional Rights'; James Tully, Strange Multiplicities (Cambridge: Cambridge University Press, 1995), p. 30; Richard Bellamy, 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', Political Studies, 44, Special Issue (1996), 436-56; Richard Bellamy and Dario Castiglione, 'Constitutionalism and Democracy - Political Theory and the American Constitution', British Journal of Political Science, 27 (1997), 595-618; and 'The Communitarian Ghost in the Cosmopolitan Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe', in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, Surrey: Avebury, 1996), pp. 111-29.
49. See Waldron, 'A Right-Based Critique of Constitutional Rights'; James Tully, Strange Multiplicities (Cambridge: Cambridge University Press, 1995), p. 30; Richard Bellamy, 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', Political Studies, 44, Special Issue (1996), 436-56; Richard Bellamy and Dario Castiglione, 'Constitutionalism and Democracy - Political Theory and the American Constitution', British Journal of Political Science, 27 (1997), 595-618; and 'The Communitarian Ghost in the Cosmopolitan Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe', in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, Surrey: Avebury, 1996), pp. 111-29.
50. See Waldron, 'A Right-Based Critique of Constitutional Rights'; James Tully, Strange Multiplicities (Cambridge: Cambridge University Press, 1995), p. 30; Richard Bellamy, 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', Political Studies, 44, Special Issue (1996), 436-56; Richard Bellamy and Dario Castiglione, 'Constitutionalism and Democracy - Political Theory and the American Constitution', British Journal of Political Science, 27 (1997), 595-618; and 'The Communitarian Ghost in the Cosmopolitan Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe', in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, Surrey: Avebury, 1996), pp. 111-29.
51. See Waldron, 'A Right-Based Critique of Constitutional Rights'; James Tully, Strange Multiplicities (Cambridge: Cambridge University Press, 1995), p. 30; Richard Bellamy, 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', Political Studies, 44, Special Issue (1996), 436-56; Richard Bellamy and Dario Castiglione, 'Constitutionalism and Democracy - Political Theory and the American Constitution', British Journal of Political Science, 27 (1997), 595-618; and 'The Communitarian Ghost in the Cosmopolitan Machine: Constitutionalism, Democracy and the Reconfiguration of Politics in the New Europe', in Richard Bellamy, ed., Constitutionalism, Democracy and Sovereignty: American and European Perspectives (Aldershot, Surrey: Avebury, 1996), pp. 111-29.
52. Bellamy, 'The Political Form of the Constitution: The Separation of Powers, Rights and Representative Democracy', p. 455.
53. Andrew Mason's unpublished paper, 'Imposing Liberal Principles', helped me formulate this distinction.
54. Kenneth May, 'A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision', Econometrica, 10 (1952), 180-4. For an account of several arguments defending majority rule, see Robert Dahl, Democracy and its Critics (New Haven, Conn.: Yale University Press, 1989), pp. 138 ff.
55. Kenneth May, 'A Set of Independent Necessary and Sufficient Conditions for Simple Majority Decision', Econometrica, 10 (1952), 180-4. For an account of several arguments defending majority rule, see Robert Dahl, Democracy and its Critics (New Haven, Conn.: Yale University Press, 1989), pp. 138 ff.