LEGISLATED RIGHTS IN THE ANGLO-AMERICAN TRADITION.

• Author: Ekins, Richard

1. INTRODUCTION

   The guiding aim of legislatures should be to protect and promote human rights. This might seem a common sense or obvious proposition. But there are some theorists and judges who reject it, holding that human rights are the province of courts while the task of legislatures is to increase the welfare of society in aggregate or on average. As Robert Lowry Clinton reports in his comment, "[a]lthough 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". (3) Other theorists and judges accept that the legislatures should aim to protect rights but doubt their practical competence in doing so. To entrust legislatures to do so is akin to "allowing the fox to guard the hen house", reports Andy Olree in his contribution, at least for those "negative rights" that are held against the legislature. (4) Finally, some theorists and judges neglect the question of the legislative role simply because both scholarly and popular discourse about human rights has focussed on the judicial role to an overwhelming degree. Victoria Nourse reports the dominant view in the American academy that "rights are associated with courts, not legislatures," with the consequence that many constitutional theories fail to understand "the constitution entire" with all its working parts. (5) Adam MacLeod agrees, noting that it is "beyond dispute" that claims that the legislature is well placed to secure and promote human rights have "fallen into disfavour in common-law jurisdictions". (6)

   Legislated Rights: Securing Human Rights through Legislation aims to correct these imbalances in constitutional thought and scholarship and proposes a new understanding of human rights law that emphasises the legislature's role. (7) Together with four other authors--Maris Kopcke, Francisco Urbina, Bradley Miller, and Paul Yowell--we aim to show how legislatures should be, and in well-functioning democracies commonly are, at the centre of human rights practice. The book begins by identifying and criticising four theses that inhibit an understanding of the legislative role and by introducing four counter-theses to replace them. Stated as propositions and without commentary, the four thesis/counter-thesis pairings reviewed in first chapter of the book are as follows:

   Thesis 1: The legislature's main function is to promote the general welfare by aggregating preferences or maximising overall utility Counter-thesis 1. 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 well-being and rights of all persons in community Thesis 2: 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 Counter-thesis 2: The legislature is not inherently biased against minorities and is fit to engage in principled decision-making about human rights Thesis 3: 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 Counter-thesis 3: 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 Thesis 4: 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 Counter-thesis 4: the legislature is capable of providing non-defeasible protection to human rights, by specifying them in a form so that the rights are not defeasible against countervailing interests or the general welfare. (8) The four theses that we challenge are not all of a kind. The first two make claims about legislatures that are neither purely normative nor merely reporting empirical observations. Rather, they express a view as to the capabilities of legislatures, what they are especially suited to do, given their institutional design and composition. Our corresponding counter-theses are also institutionally focused, and offer a different and, we argue, truer understanding of the relative capacity of the legislature as an institution in relation to rights. The second set of theses makes claims about rights, their relationship to the common good, and their defeasibility. Our corresponding counter-theses offer a different understanding of rights, showing how a richer understanding of rights resists opposition between rights and the common good and, similarly, resists any inherent opposition between rights and legislation.

   Our four distinguished commentators challenge various aspects of these four thesis/counter-thesis pairings and they challenge much else, too. In this article, we defend our recourse to the central case method (sec. II) and consider the role and record of the legislature in the American tradition and in the wider common law world (sec. III). We go on to explore the relationship between the argument of Legislated Rights and questions of constitutional structure, including the separation of powers in parliamentary and presidential systems and the nature of judicial power (sec. IV). We then discuss whether the book's argument is fairly read as harbouring scepticism on the great question of judicial review (sec. V) before reviewing how our argument for legislated rights relates to instances in which the "rights" being legislated are, in truth, not only specious but themselves violate true rights (sec. VI). We conclude our reflections by exploring the relationship between legislated rights, common law, custom, and tradition (sec. VII).

2. CENTRAL CASE METHOD

   In the first pages of Legislated Rights, we introduce what Clinton calls our book's "most fundamental presupposition": central case analysis. (9) Central case analysis is a way of approaching the study of legislatures and of legislation that does not set out to find the one thing common between all of the legislatures that have ever been, or of some such sub-set of them across time and geography. It is a way of approaching the study of legislatures and of legislation that is clear-eyed on the relationship between philosophical argument and history and sociology and anthropology, inviting the latter studies of human affairs--all bounded by time and place and all seeking to identify particular truths--to inform, but not to settle or bound or constrain the search for general truths. One can set out to study the United States Congress and its legislation in America today or in 1787 or at the time of Brown v. Board of Education. (10) One's project will answer to the standards for truth for such a project. But what if one's project is not bounded by time and place in this way? What if one's project aims to study the nature of the legislature and of legislation, not here and there, then and now, but as a philosophical matter, seeking to identify general truths about the institution and its activity? It is here that central case analysis offers a methodology in philosophical argument.

   An analogy may be drawn to the natural sciences. As we explain in Legislated Rights, the "study of medicine proceeds on the basis of ideas about the healthy functioning of the body, and that is what enables doctors and researchers to identify pathologies." (11) It may be that there has never been a human with a body that answers to the central case of a healthy body--perhaps each one of us, in our bodily make-up and functioning, is imperfect in small or large ways. What makes the central case of a healthy body "central" is not, as we say, its empirical regularity or statistical likelihood. (12) The central case is not constructed by seeking out the lowest common denominator or one thing common or set of things statistically frequent or regular across all human bodies and their functioning, be it for all of human history and geography or for those of a given time and place. Rather, what makes the central case of a body "central" is that it is fully what a healthy body should be. The real life bodies of flesh-and-blood humans can be studied in the light of this central case, which assists in identifying where they are less than fully healthy and, so, non-central in one or more ways.

   The study of human affairs, unlike the study of the natural sciences, has as its object self-directing and self-determining human actions, practices, traditions, customs, and other like aspects of our world that are as they are because of human willing and intending. (13) These actions, practices, and so on are "certainly influenced by the 'natural' causes properly investigated by the methods of the natural sciences, including a part of the science of psychology", but they can be "fully understood only by understanding their point, that is to say their objective, their value, their significance or importance, as conceived by the people who performed them, engaged in them, etc.". (14) For any human act, the question why presents itself: Why did persons act the way they did? Synonymously: What were their reasons for so acting? (15) Indeed, so controlling is the why-question methodology in the study of human actions that Aristotle, Aquinas, and those, like John Finnis and us, who follow their methodological teachings, affirm that "to understand, describe, and explain what something brought about by human judgment and choice is requires that one ask why that something was brought about". (16)

   If one is studying the legislature and legislation of a time and place, one attends to the reasons and self-understandings of the persons...