Rights and Disagreement

Most modern democratic states limit the power of their government through a written constitution that divides its powers and protects the rights of the citizenry. Jeremy Waldron argues against constitutions on the basis that they undermine people's ability to choose. This paper explores whether people should be allowed to choose, and if they have the capacity to do so.

The paper makes a twofold contribution. Firstly, it advances a preliminary account of the conditions that need to obtain for constitutional rights to be democratic. Secondly, in so doing, it defends precommitment-based theories from a criticism raised by Jeremy Waldron-namely, that constitutional rights do not become any more democratic when they are democratically adopted, for the people could adopt undemocratic policies without such policies becoming democratic as a result. The paper shows that the reductio applies to political rights, yet not to nonpolitical rights, such as reproductive, environmental, or privacy rights. The democratic status of the former is process-independent. The latter, by contrast, are democratic precisely when they are adopted by democratic means.

California Law Review, 1998

It is eminently appropriate that the Inaugural Lecture of the Brennan Center Symposium on Constitutional Law be delivered by Frank Michelman, for no one could be more deserving or more enlightening. It is also appropriate that Michelman should choose as his topic the tension between democracy and constitutionalism, for this tension has been the central problem of American constitutional theory since the onset of the twentieth century. Constitutional theory is an odd enterprise. In contrast to certain political philosophies that aspire to systematic analysis based on first principles, constitutional theory primarily seeks to expose and clarify the principles immanent within the practice of constitutional adjudication. For this reason constitutional theory cannot posit itself behind a "veil of ignorance... or within an "ideal speech situation." 2 Constitutional theory is always, so to speak, within our tradition and our history; it is parasitic on the very practice it seeks to explain. The achievements of revered and influential Justices, like William J. Brennan, whom we are here justly convened to honor, must therefore be taken as part of the data to be explained. In this sense, Michelman is right to place Brennan's work at the center of his investigation. I It is, however, a tricky business to expose and clarify the principles immanent within a practice. This is because sophisticated practices, like constitutional adjudication, tend to be complex and filled with unresolved internal tensions that leave ample room for critical disagreements. 3 Indeed, as Alasdair MacIntyre has written, "A living

Sociology Study, 2023

Today, we are witnessing a profound transformation of the dominant model of representative democracy which is increasingly giving way to a new form of democracy of the public, as Bernard Manin defined it. In a democracy of the public, parties tend to personalise themselves, becoming machines serving one particular person, who embodies public feelings. Participation and social organization within the territory are progressively replaced by a widespread communication and social media framework where the citizens become just passive spectators. To this, we must add that the spectacularisation of the current democratic systems, adopted to satisfy the audience, leads to negative effects on the protection of fundamental rights. This article will analyse the aspects that characterise the democracies of the public, and their social and legal effects on the consideration of human rights. The article goes further without being limited to this issue. In fact, it wants to emphasise the way human rights are crucial to bolstering democracies, rather than merely the other way around. Doctrines and politics have frequently emphasised the need for democracy, and, more specifically, the export of democracies to advance human rights. Contrarily, a shift in perspective is required in order to preserve liberal democracies.

American Studies in Scandinavia

Modern Law Review, 2006

This paper examines the emergence of a new model for protecting rights (referred to as the 'parliamentary rights' model) in Canada, New Zealand, the United Kingdom, and the Australian Capital Territory. This parliamentary model is distinguished from the more traditional, judicialcentric, approach to rights protection in at least two ways. The ¢rst is that this parliamentary rights model incorporates the notion of legitimate political dissent from judicial interpretations of rights. The second way it challenges the court-centred model is by incorporating the systematic evaluation of proposed legislation from a rights perspective. Both of these features allow for the possibility of a broader range of perspectives on the appropriate interpretation of rights or the resolution of disagreements involving claims of rights than those arising from more judicial-centric bills of rights. The paper assesses whether this alternative approach to rights protection satis-¢es those sceptics who doubt the virtue or prudence of conceiving of political disputes as legal rights claims for which the judiciary has the dominant role in their interpretation and resolution. Conventional wisdom suggests that liberal constitutionalism can take one of two rival paths. One path is to codify rights, representing a higher law than ordinary legislation, where the judiciary is empowered to interpret these and grant remedies for their infringement. This is the model in£uenced byAmerican-style judicial review, and has been emulated and adapted inWestern Europe after 1945 and in central and Eastern Europe after 1989. 1 Although signi¢cant di¡erences exist in the nature of constitutional adjudication (relating to whether ordinary or constitutional courts are used, di¡erences in the appointment, composition and tenure of judges, and how issues come before courts), 2 what unites this approach is the judiciary's capacity to nullify legislation that is deemed inconsistent with protected rights. And nullify legislation they have. In the past thirty years, the 'French, German, and Italian courts have, respectively, invalidated more national laws than has the US Supreme Court^in its entire history'. 3 The second path emphasises the supremacy of legislative judgment. This is the approach of Westminster-modelled parliamentary systems that historically have

Ratio Juris, 2001

Many liberals cannot help distrusting deliberative democracy theory. In their view, the theory offers no sufficient guarantee that the outcomes of democratic deliberation will be respectful of individual interests generating what they conceive as basic moral rights. The purpose of this text is to provide one argument showing that liberal rights are sufficiently protected within deliberative democracy theory. The argument does not rest on the idea of moral rights or material justice. It rests on the conditions of legitimate law deliberative democracy theory presupposes, namely, the conditions that make concrete the idea of legitimacy as “actual public justification.”

The theory of rights is crucial as a means of relieving the tension between basic rights and democracy, and as a means of resolving the problem of allocating competence between the constitutional court and the legislature. To some theorists, no tension between basic rights and democracy exists, for the latter presupposes the former. To others, among whom I include myself, tension does exist, for basic rights, in lending protection to certain persons and groups, limit the possibilities of political decision. In this connection it is important to take up the problem of the necessary conditions for realizing basic rights. One of these conditions concerns the delimiting of the scope of institutional action that is found, so to speak, in the space between the constitutional justices and the legislature, the latter as representative of the popular will.

2004

PREFACE viii or conceptualist claim that politics should be kept out of law so as to preserve the integrity of law, and the radical democratic claim that law should be kept out of politics so as to preserve the integrity of politics. A number of essays also engage Frank's writings on the relation between democracy and rights and the problem of democratic self-government (or what he calls the 'paradox of constitutional democracy'). For instance, Johan Froneman deals with the question how the constitutional demand for the rule of law can be reconciled with the democratic demand that the people govern themselves. He addresses in this regard Michelman's arguments as to why the duty and responsibility to effect this essentially impossible reconciliation ultimately falls on the judge. A second-closely related-theme deals with questions of alterity and difference. Irma Kroeze draws upon Frank's reflections on self-government and difference to criticise the Constitutional Court's failure in freedom of religion cases to question normative assumptions that are embedded in mainstream morality, and to seek to include the marginalised other. Karin van Marle reads Michelman as a hybrid thinker who occupies a space between liberalism and civic republicanism. She argues in this regard that Michelman's adherence to certain basic principles of liberalism necessarily detaches him from the concern with the reflexive horizon of love raised in recent European legal theory. A third theme relates to the need for judges to engage in practical reasoning and judgment, to explain the moral and political reasons for their decisions, rather than purporting to derive their judgments from 'self-applying' legal materials. Lourens du Plessis explores Frank's reflections on practical reasoning within the context of constitutional interpretation, while Henk Botha looks at it from the perspective of the limitation of rights and debates about judicial balancing. Finally, a whole range of essays deal with issues of social justice, socioeconomic rights, and the need to subject private-law institutions and social and economic power relations to a transformative critique. André van der Walt, Danie Brand and Jonathan Klaaren explore this theme with reference to the issues surrounding the promotion of socioeconomic rights in the South African Constitution. In the process, they are able to engage the rich source of publications that Frank has written in this field since 1967 and the emerging case law from the South African Constitutional Court. Hanri Mostert, on the other hand, approaches the tension between the protection of private rights and the promotion of social justice from the perspective of the property clause, arguing that a sound balance between these two goals can be found according to both Frank's writings on property as a constitutional right and German constitutional case law. Dennis Davis criticises the Constitutional Court's reliance, in cases dealing with the horizontal application of the Bill of Rights, on the conceptual tools of the past, and argues instead for a future-orientated or transformative approach. We wish to thank the University of South Africa for hosting a colloquium in January 2003, where authors presented extracts from their essays and were given the benefit of Frank's direct engagement with their ideas. Thanks also to Gerhard du Toit for his editorial assistance and the bibliography, and to Frederik de Jager of AFRICAN SUN MeDIA for his enthusiasm for the project. We trust that this collection of essays will, in the spirit of Frank's own scholarship, stimulate much further intellectual argument and debate.