There are at least two reasons for this. And secondly, rights analysis has a more complex structure than the exclusive focus on proportionality suggests. It is, thus, a book of impressive breadth; however, the present critical review will focus only on Webber's theory of constitutional rights. As proportionality scholars are well aware, some of the early literature on balancing and rights is American, with special reference to the First Amendment. Now, Webber endorses my criticism that rights conceived generally are merely intermediate conclusions about what is permissible and are not, as under specificationism, the final conclusions that we really seek about what is ultimately permissible. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. Are some individuals truly trying half-consciously? They are like poker chips in Monte Carlo: one can purchase them with any number of diverse currencies and everyone recognizes their universal value regardless of the currency used to buy them.
Raz's observation, suitably focused on constitutional rights, suggests that there is good reason not to elide the distinction between the definition of a constitutional right and its limitation. They allow people with diverse moral outlooks to share common moral standards, even if only in the abstract, which facilitate social life because no one need either commit up front to an exhaustive set of conclusive duties or display their deepest normative commitments. These preliminary remarks lead to an examination of certain problems with Webber's views, however. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights.
He contends that its overzealous definition of rights actually robs rights of the normative force that is widely held to distinguish them. I am not the first to defend this theory. Indeed, under the received approach, rights are relegated to the status of defeasible reasons and cease to hold special moral status. However, even accepting that some intellectual reconstruction may be in order, should not the views expressed by those associated with the received approach still be put in their most favorable light before being nailed to the wall? A political culture revolving around rights is cultivated and sustained by a constitutional democracy. A right is not a consideration to be factored into an all-things-considered judgment of what is permissible, according to specificationism, it rather represents the all-things-considered conclusion about permissibility.
Register a Free 1 month Trial Account. Constitutions define a political framework whose guarantees are defined as rights. The best exemplar of such a state of affairs is the debate surrounding the constitutional right to an abortion in the United States. Constitutional norms can only hold a society together in this way if they are widely accepted, but when it comes to abortion in the United States, that wide acceptance is absent. Thus, through the proportionality-balancing process, which, Webber claims, evaluates the correctness, goodness, or rightness of state action in a mere mathematical or technical sense, political morality is evacuated from the analysis pp. This suggests that a limitations clause simply makes explicit what is already implicit whenever rights are invoked, namely, that rights are limited in scope.
Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. It represents constitutional authority for an administered world. A distinguishing feature of specificationism, which Webber locates and finds attractive in his own account of constitutional rights, is its dynamism. While I think Webber needs to tread more carefully in places, overall I find his account of constitutional rights appealing.
There is no democratic constitutional regime whose practices suggest otherwise. Arguing that underspecified rights call for greater specification, Grégoire C. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. First, the idea that rights have to be conceived of as conclusions to practical reasoning seems to imply that rights must be understood either as premises as in the received approach or as conclusions as in Webber's approach to practical reasoning. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation.
This, in turn, seems to entail that the received approach to constitutional rights has more going for it than Webber recognizes. This does not mean that rights cannot be misconstrued or limited in ways that are mistaken or just plain wrong. What rights we have, and what it means to have them, are matters of public debate that are as familiar as they are vital. Indeed, at many points, Webber comes perilously close to acknowledging the possibility of a more generously conceived version of the received approach. By transforming intrinsically moral-political debates about the scope and content of rights into technical claims of weight and balance, the received approach is engaged, presumably, in an attempt to depoliticize and, as it were, to demoralize constitutional rights pp. Webber's most fundamental positive thesis, in contrast, is that constitutional rights are actually constituted by their accompanying limitations clause. The content of any moral right depends on belief-independent moral facts along with empirical facts about circumstances.
The problem is that once you have gotten your nifty new product, the the negotiable constitution webber grgoire c n gets a brief glance, maybe a once over, but it often tends to get discarded or lost with the original packaging. Thus, it constantly and wrongly speaks of violations and even sometimes of suppression of rights at the very beginning of this stage in the analysis, when in reality it is only faced with an infringement; as a consequence, the second stage is characterized by the application of a regime that is completely different from that of the first, a regime which corresponds more to a context of rights-violation. What must be shown is that the social benefit of understanding constitutional rights as intermediate conclusions is more mirage than reality. You can change your cookie settings at any time. The Negotiable Constitution: On the Limitation of Rights Cambridge: Cambridge University Press, 2009; paperback edition 2012 In matters of rights, constitutions tend to avoid settling controversies. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. The rights are necessarily subject to whatever constraints the clause articulates.
There seems to be no reason in support of such a damning ascription of views. This is true of, for example, the European Convention on Human Rights, the Canadian Charter of Rights and Freedoms, the German Basic Law, the South African Bill of Rights, and the New Zealand Bill of Rights. For if legislative enactments are justified--and surely many of them are--they will necessarily not conflict with anyone's rights. A final if controversial disposition is required, which will likely be based on equally controversial premises. The foregoing overview underlines the striking parallel in the structures of both the received approach to constitutional rights and the general conception of rights simpliciter, as well as Webber's and my respective contrary positions.
For the ideal of a free and democratic society is an abstract and open-textured one. The moral facts are the moral facts, the empirical facts are the empirical facts, and controversy or uncertainty about either is usually irrelevant. Arguing that underspecified rights call for greater specification, Grégoire C. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, and South Africa, as well as the jurisprudence of treaty-based legal systems like the European Court of Human Rights, giving rise to claims of a global model, a received approach, or, simply, the best-practice standard of rights adjudication. Cambridge University Press, 2009 Charles-Maxime Panaccio International Journal of Constitutional Law Oxford Academic Citation Charles-Maxime Panaccio, The Negotiable Constitution: On The Limitation of Rights.