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

• Author: Clinton, Robert Lowry

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...