THE LEGISLATURE: A VITAL PART OF THE APPARATUS OF CIVIL RIGHTS.

• Author: MacLeod, Adam J.

1. LEGISLATED RIGHTS IN FOUR COUNTER-THESES

   Legislated Rights sets out to explain and defend an "obvious proposition" that is "obscured in modern, court-centered modes of human rights discourse." (1) The book states the proposition, obvious in part for being modestly expressed, in the first sentence. "The legislature is well placed to secure and promote human rights." (2) This proposition was almost unquestioned from the time of the English Revolution until the American legal realist revolution. (3) That the proposition has fallen into disfavor in common-law jurisdictions is beyond dispute. Contemporary academic and legal discourse takes as given judicial supremacy in security of fundamental rights, and legislative indifference or hostility to them. As the authors put it, "it has become axiomatic that the legislature is to be expected to act contrary to human rights and that only a judicially enforced bill of rights will secure a commitment to rights." (4)

   The obvious proposition thus requires a defense against the now-axiomatic account, which the authors call the "received approach." (5) The received approach places judges at the center and legislators at the periphery of the enterprise of securing human rights by specifying civil rights. Influential theorists have achieved this unsettling of ancient wisdom in part by focusing on defective legislatures rather than well-ordered ones. They "characterised as paradigmatic what ought to be understood as legislative pathologies." (6) The "ought" here is a normative imperative for academics and jurists who attempt sound descriptive scholarship. The book does not proffer a normative argument about the proper balance of powers between legislative and judicial (though it certainly has normative, constitutional implications). The authors set out to reframe a clear picture of how a properly-constituted and well-functioning legislature responds and adds security to human rights in fact.

   The authors of Legislated Rights attribute to the received approach four theses, which they desire to challenge. The first thesis is that a legislature acts to aggregate preferences or maximize collective utility, (7) enterprises that necessarily involve zero-sum contests between individual or identity-group interests. The second is that legislatures are institutionally biased in favor of majority interests and against minority interests. (8) The third thesis is 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." (9) The fourth thesis is that almost all human rights are defeasible, as the unavoidable infringement of rights is often justifiable on the balance of competing interests. (10) Together, these four theses commend a strong power of judicial review of legislation, judicial diligence on behalf of rights against legislative encroachment, and the use by judges of balancing or proportionality tests to assess when legislative infringement of rights is justified.

   The four theses of the received approach provide a useful foil to frame and clarify the four major premises of the book's argument, which the authors call "counter-theses." These are:

   (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 wellbeing and rights of all persons in community; (2) the legislature is not inherently biased against minorities and is fit to engage in principled decision-making about human rights; (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; and (4) 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. (11) The first three of these counter-theses are revolutionary in contemporary scholarship about legislatures and rights. And, in making the case for those premises, I think the authors are successful. In Part 11 of this essay, I will explain why the book succeeds on the first three counts, and why that success matters. (12) Yet, as I will explain in Part III below, I think the book fails to demonstrate persuasively counter-thesis four. Indeed, I think premise four cannot be demonstrated for reasons Aristotle identified more than two millennia ago. (13) Just as proponents of the received account fail to contend with the strongest arguments in favor of legislative specification of rights, the authors of Legislated Rights fail to contend with the strongest arguments in favor of the role that natural rights, customary rights, vested private rights, and other pre-positive sources of legal obligation must play in specifying civil rights, and that impose limitations on legislative power as a matter of legal justice.

2. RIGHTS AND THE COMMON GOOD

   The book is tightly argued and its premises are patiently developed. The book's analytical precision avoids sweeping generalization. The authors consider carefully each aspect of each premise. The result is a slim, elegant argument.

   The authors' modesty and precision might cause readers to miss the profundity of key insights. One of these is the idea that legislated rights can, and in central instances do, serve the common good of persons. The authors employ Hohfeld's scheme of jural relations and other analytical tools to demonstrate the inadequacy of unspecified right assertions. (14) When used by other scholars, these analytical devices often yield a reductionist account of rights. What analytical jurisprudence gains by distinguishing the different jural relations bound up in a legal status or relationship, it often yields back by reducing legal advantages and disadvantages to mere power comparisons.

   One sees this reductionism most clearly in American Legal Realism and in the legal criticism movement. (15) Though not inherently cynical, those schools share the cynic's failure to attend to the reasons for which people obey their legal obligations. In their schemes, rights are either mere instruments for predicting by scientific methods how judicial power will be exercised or devices to be manipulated in zero-sum power conflicts between different identity groups.

   By comparison to those schools of academic skepticism, the authors of Legislated Rights demonstrate the inherent desirability of specifying rights to achieve a genuinely common good. Following Hart (who followed Plato, Aristotle, and Aquinas), (16) they show how legal justice can serve natural justice when designed in pursuit of good ends. Right action is the keystone. A right in their account is not a possession or entitlement but rather a guide to practical deliberation and action--"the right thing to do." (17) This univocal sense of right enables the authors to connect legislation to human rights, for legislation specifies by rule what intentions and actions are to be done or avoided in choosing and doing. The decision to jettison in rem rights deprives the authors of the plural senses of "right" which common-law jurisprudence supplies, a deprivation that exposes their blind spot. (18) But it also frees the main argument from needless baggage.

   Though the argument is predicated on "right" as a reason for action, the result is not a normative argument. The book argues that legislatures are competent to specify rights, not that they should have exclusive jurisdiction over any class of rights. But nor do the authors load the dice with false neutrality. Descriptive jurisprudence cannot avoid evaluation if it is to be done well. (19) Scholars of law are engaged in academic inquiry--inquiry for the sake of knowing what is true, classically known as theoretical reasoning--about the practical reasoning of people who act for legal reasons. (20) To perform good descriptive work about the normative activities of human beings requires some understanding of those normative activities from the inside. In particular, one must discern the most important features of an institution equipped to secure human rights from the perspective of...