Legal Theory Lecture 18

1
Legal Theory Lecture 18

• Fundamental Rights and Liberalism
• What are fundamental rights? Which rights are
  fundamental? Which rights should be fundamental?
• What is liberalism?
• What is the liberal notion of fundamental rights?
• What critiques of liberal rights discourse have
  been offered?
• Communitarian Sandel
• Feminist Young
• Democratic Hutchinson and Monahan
• Liberal Glendon
• Waldrons defence of liberal rights discourse.

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Fundamental Human Rights

• Rights held by all humans in all places and at
  all times (universal) by virtue of being human
  and in recognition of the most important aspects
  of being human (fundamental).
• Claims available to every human to be treated in
  a certain fundamental way by others based on
  universally acceptable reasons.
• Impose a duty on all reasonable persons to comply
  with the claim inherent in the right in question.

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Lukes on fundamental rights

• Fundamental rights are restraints on the pursuit
  of what is held to be advantageous to society,
  however enlightened or benevolent that pursuit
  may be.
• Fundamental rights invoke a certain kind of
  abstraction from specific and socially local
  practices and identities. They reflect the inner
  universal element of human being which lies
  behind all cultural and personal manifestations.
  
• Fundamental rights presuppose a set of perennial
  existential facts about the human condition eg
  selfish individualism, violence and
  irrationality.

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• Fundamental human rights (also termed natural
  rights, universal human rights, the rights of
  man) are often considered to exist independently
  of the positive law (or even the positive
  morality) of a given jurisdiction and to serve as
  a standard for evaluating the justice or
  legitimacy of the positive law (or morality).
• If constitutionalised they become a legal
  standard for evaluating the validity of the rest
  of the positive law.
• Different theorists locate fundamental human
  rights in
• Divine law
• Natural law
• A universal positive morality
• International law
• Other positive legal sources

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Fundamental Human Rights

• Ontological issues What is the nature of these
  rights? Do they exist? How? Within a system of
  natural law? Morality? International law?
• Epistemological issues How do we know about
  these rights? How do we know what types of rights
  they are? How do we prioritise these rights or
  decide on conflicts between them?

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Questions

• What are people's fundamental and universal
  interests?
• Which rights are fundamental human rights? Civil,
  political, social, economic? Whatever the UN
  says? Who decides? How? Is there a fact of the
  matter?
• See the discussion earlier in the course on moral
  objectivity (Waldron).
• Consider the debates about civil/political rights
  v social/economic rights.
• How do we justify certain rights being
  universally applicable and enforceable in the
  face of cultural diversity?
• Consider the debates about the differences
  between liberal and 'non-liberal (Western and
  non-Western) cultures as regards values and
  interests.

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• How are fundamental human rights justified? Are
  they justified at all costs?
• Are there limits to the pursuit/enforcement of
  fundamental human rights? What are they? How are
  these limits justified?
• Why should fundamental human rights trump or
  override other social values and aims?
• Why should the interests of individuals trump the
  interests of the group at large where these
  conflict?
• The individual right to choose to smoke v the
  communal interest in reducing the burden on the
  health system.
• Are the resources available to a State a relevant
  consideration in relation to its obligations to
  protect fundamental human rights?

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Liberalism

• Liberalism is concerned to create a
  legal-political environment which does not impose
  any specific moral-political notion of the good
  life (the good) on its subjects but which merely
  provides the minimal regulation needed for each
  subject and group of subjects to pursue their own
  notion of the good life in community with others
  (the right).
• The only legitimate constraints allowed upon
  individual and group freedom are those necessary
  to ensuring that all individuals and groups can
  live together peacefully and productively.

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• Liberalism is grounded in the existence of
  moral-religious pluralism within a society about
  how we should live and in a belief in the equal
  value of each moral-religious vision of the good
  life and the freedom of each person to pursue
  their own vision of the good life.
• Pluralism, equality, and freedom.

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• The set of fundamental rights required to protect
  human dignity must be morally thin enough to
  enable individuals to choose their own values and
  ends without imposing a set of values or ends on
  them. It must not depend on any particular
  conception of the good life or presuppose the
  superiority of one way of life over another.
• But it must also be robust (thick) enough to
  protect the autonomous choosing self from
  external interference or harm, as well as trump
  majority will or any other exercise of power
  which would interfere with this set of rights.

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• The only fundamental rights which can be
  properly justified (and perhaps constitutionally
  entrenched) within a liberal culture are those
  rights necessary to preserve each persons
  individual ability to choose their own values,
  goals and way of life (freedom and equality).
• The question is which set of rights are necessary
  in this regard?
• Varying views amongst liberals and others
  morally thin (procedural) views and morally thick
  views.

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• Fundamental liberal rights to
• Social order
• Freedom from unreasonable interference with ones
  reasonable pursuit of the good life (life,
  property and liberty)
• A right to be subject to state coercion only for
  a breach of the law and for no other reason
• A right to do anything not prohibited by law
• Freedom of speech, travel, association, religion.
  

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• Official compliance with law
• Know what the laws are
• Access courts to enforce rights
• Fair and public trial
• Be heard at any official proceeding affecting
  ones interests
• Argue ones case before ones peers (jury trial)
• Legal representation at official proceedings
• Formal equality before the law (non-discrimination
  , non-bias)
• Reasonable and publicly justified official
  decisions
• Participation in the creation and amendment of
  all laws affecting ones interests (political
  rights)
• Compensation for taking of property by the State
  for public purposes.

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• Question of whether fundamental liberal rights
  should extend to rights to
• Privacy
• Sexual freedom
• Contraception
• Abortion
• Euthanasia

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• Who does/should decide these things? How?
• By reference to some objective set of
  natural/divine rights?
• By reasoned argument pursuant to some set of
  shared values? See Waldron on this.
• Note the role of constitutional courts in
  determining these things.
• Note the arguments offered by courts in
  determining the limits of fundamental liberal
  rights.

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• For morally thicker versions of liberalism,
  additional fundamental human rights might be
  identified and constitutionalised eg certain
  social and economic rights.
• Fundamental liberal rights are traditionally
  limited to civil and political rights.
• Query why this should be so. Aren't social and
  economic rights also necessary for there to be
  meaningful freedom and equality?
• Are rights the best way to protect fundamental
  human values?
• Why not a system which promotes ad hoc caring and
  community building per Young's ethics of care?

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US Bill of Rights

• Amendment I
• Congress shall make no law respecting an
  establishment of religion, or prohibiting the
  free exercise thereof or abridging the freedom
  of speech, or of the press or the right of the
  people peaceably to assemble, and to petition the
  government for a redress of grievances.
• Amendment IV
• The right of the people to be secure in their
  persons, houses, papers, and effects, against
  unreasonable searches and seizures, shall not be
  violated, and no warrants shall issue, but upon
  probable cause, supported by oath or affirmation,
  and particularly describing the place to be
  searched, and the persons or things to be seized.
  

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• Amendment V
• No person shall be held to answer for a capital,
  or otherwise infamous crime, unless on a
  presentment or indictment of a grand jury, except
  in cases arising in the land or naval forces, or
  in the militia, when in actual service in time of
  war or public danger nor shall any person be
  subject for the same offense to be twice put in
  jeopardy of life or limb nor shall be compelled
  in any criminal case to be a witness against
  himself, nor be deprived of life, liberty, or
  property, without due process of law nor shall
  private property be taken for public use, without
  just compensation.
• Amendment VI
• In all criminal prosecutions, the accused shall
  enjoy the right to a speedy and public trial, by
  an impartial jury of the state and district
  wherein the crime shall have been committed,
  which district shall have been previously
  ascertained by law, and to be informed of the
  nature and cause of the accusation to be
  confronted with the witnesses against him to
  have compulsory process for obtaining witnesses
  in his favor, and to have the assistance of
  counsel for his defense.

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• Amendment VII
• In suits at common law, where the value in
  controversy shall exceed twenty dollars, the
  right of trial by jury shall be preserved, and no
  fact tried by a jury, shall be otherwise
  reexamined in any court of the United States,
  than according to the rules of the common law.
• Amendment VIII
• Excessive bail shall not be required, nor
  excessive fines imposed, nor cruel and unusual
  punishments inflicted.

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• To what extent do liberal rights impose a
  particular vision of the good life on its
  subjects?
• To what extent are liberal rights ethnocentric?

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The Communitarian Critique of Liberal Rights
Discourse

• Michael Sandel (communitarian critic of
  liberalism) asks why the liberal values of
  individualism, freedom and toleration should be
  the primary virtues of his/our society.
• How is liberalism justified as the dominant
  ideology in our society?
• "rights-based liberalism begins with the claim
  that we are separate, individual persons, each
  with our own aims, interests, and conceptions of
  the good, and seeks a framework of rights that
  will enable us to realise our capacity as free
  moral agents, consistent with similar liberty for
  others". Sandel p.89
• Sandel queries whether the liberal view does in
  fact presuppose a moral view of a preferred way
  of life and set of values - the life of the
  rational, self-interested individual and the
  values of individualism, freedom, toleration etc.
  
• See also Hutchinson and Monahan on this.

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Communitarianism

• OED
• A theory or ideology which rejects as divisive
  both the market-led theories of political
  conservatives and the liberal concern for
  individual rights, advocating instead a
  recognition of common moral values, collective
  responsibility, and the social importance of the
  family unit.
• Sandel discusses a challenge to rights-based
  liberalism from communitarianism which gives
  fuller expression to the claims of the community
  as a whole than the liberal vision allows.

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• Communitarians question to the claim for the
  priority of the right over the good and the
  picture of the freely choosing individual it
  embodies.
• "Following Aristotle, they argue that we cannot
  justify political or legal arrangements without
  reference to the common purposes and ends, and
  that we cannot conceive our personhood without
  reference to our role as citizens, and as
  participants in a common good life". Sandel
  p.90.

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• Our communal nature precedes our individuality.
• We are constituted as individuals by virtue of
  our being raised within a community.
• The interests of the community trump individual
  freedom because the community is the basis for
  individual freedom.
• Every communities embodies a specific vision of
  the good life. The communal good life trumps
  individual freedom.
• The State should protect the communal good over
  the individual right.
• It may do so by constitutionalising fundamental
  communal values and imposing duties on citizens
  to comply with those values (rather than rights
  to pursue their own vision of the good life).

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• "Communitarian critics of rights-based liberalism
  say we cannot conceive of ourselves as
  independent in this way, as bearers of selves
  wholly detached from our aims and attachments
  see Young, Davies etc. They say that certain of
  our roles are partly constitutive of the persons
  we are - as citizens of a country, or members of
  a movement, or partisans of a cause. But if we
  are partly defined by the communities we inhabit,
  then we must also be implicated in the purposes
  and ends characteristic of those communities The
  story of my life is embedded in the story of the
  communities from which I derive my identity -
  whether family or city, people or nation, party
  or cause They situate us in the world, and give
  our lives their moral particularity".
• Sandel

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Liberal Critique of Communitarianism

• Not viable in large, complex, pluralistic
  societies.
• Leads to intolerance of difference and
  majoritarianism (threat to minority interests)
• Leads to stasis in the development of a society
  and its capacity to deal with changes and
  challenges.

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Hutchinson and Monahan on Democracy and Rights

• Hutchinson and Monahan are critical of liberal
  rule of law as being too morally loaded with
  fundamental rights which impede democratic
  decision-making.
• Hutchinson and Monahan are sceptical about too
  strong a commitment to fundamental human rights,
  constitutionalism, a powerful judiciary, the
  liberal rule of law.
• Note that they are also critical of
  communitarianism imposing fundamental communal
  values for the same reasons.
• They want a thinner more procedural and
  democratic model of the rule of law.
• They dont want a legal system that pre-commits
  to either the liberal or communitarian way of
  thinking but that leaves such commitment always
  open to democratic debate.
• No entrenched bills of liberal rights or bills of
  communitarian values but only constantly
  revisable laws arising out of democratic process.

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Two key issues

• 1. Must the conditions of the democracy
  themselves be entrenched so as to prevent their
  dismantling by anti-democratic elite or an
  irrational majority?
• Are certain fundamental (democratic) rights
  required in order to safeguard the conditions of
  democracy itself? Eg free speech? See also
  Habermas later on in the course.
• Which ones? How do we determine which ones? By
  democratic means? Vicious circle here?
• What is democracy anyway? What does democracy
  require by way of legal regulation?
• How do fundamental democratic rights differ from
  fundamental liberal rights?
• What if the democratically acting majority decide
  to establish an anti-democratic political
  structure or to impose liberal or communitarian
  values upon themselves? Should they be allowed
  to?
• Paradox of a societys democratic freedom to
  undermine its democracy.

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• 2. Must certain additional rights be entrenched
  so as to protect minority groups from
  majoritarian abuse?
• Can we trust the majority to do the right thing
  by minorities under democratic conditions?
• Does democracy entail a commitment to minority
  well-being (rights)? Do liberalism and democracy
  necessarily go together?
• How are minorities to be protected under
  Hutchinson and Monahans model of things? Do they
  naively assume a benign majority? Do they rely
  upon an overly optimistic account of human
  nature?

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Glendon on Rights Talk

• Political discourse is increasingly imbued with
  the language of rights, universal, inalienable,
  inviolable.
• Decline of the notion of duties or obligations to
  each other and to the State/community at large.
• Tension between law facilitating individual
  freedom and social cohesion.
• Glendon argues that the problem is not so much
  liberal rights themselves as the use of
  rights-talk throughout societies such as ours in
  discussing social, legal and political issues.

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• The most distinctive features of our American
  rights dialect is its near aphasia loss of the
  capacity to think clearly concerning
  responsibility, its excessive homage to
  individual independence and self-sufficiency at
  the expense of the intermediate groups of civil
  society, and its unapologetic insularity. Not
  only does each of these traits make it difficult
  to give voice to common sense or moral
  intuitions, they also impede development of the
  sort of rational political discourse that is
  appropriate to the needs of a mature, complex,
  liberal, pluralistic republic. Glendon

32

• Our rights talk, in its absoluteness, promotes
  unrealistic expectations, heightens social
  conflict, and inhibits dialogue that might lead
  toward consensus, accommodation, or at least the
  discovery of common ground. In its silence
  concerning responsibilities, it seems to condone
  acceptance of the benefits of living in a
  democratic social welfare state, without
  accepting the corresponding personal and civic
  obligations. In its relentless individualism, it
  fosters a climate that is inhospitable to
  societys losers, and that systematically
  disadvantages caretakers and dependents, young
  and old. In its neglect of civil society, it
  undermines the principal seedbeds of civic and
  personal virtue. In its singularity, it shuts out
  potentially important aids to the process of
  self-corrective learning. All of these traits
  promote mere assertion over reason-giving.
  Glendon

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• By indulging in excessively simple forms of
  rights talk in our pluralistic society, we
  needlessly multiply occasions for civil discord.
  We make it difficult for persons and groups with
  conflicting interests and views to build
  coalitions and achieve compromise, or even to
  acquire that minimal degree of mutual forbearance
  and understanding that promotes peaceful
  coexistence and keeps the door open to further
  communication. Our simplistic rights talk
  regularly promotes the short-run over the
  long-term, sporadic crisis intervention over
  systemic prevention measures, and particular
  interests over the common good. It is just not up
  to the job of dealing with the types of problems
  that presently confront liberal, pluralistic,
  modern societies. Even worse, it risks
  undermining the very conditions necessary for
  preservation of the principal value it thrusts to
  the foreground personal freedom it corrodes the
  fabric of beliefs, attitudes, and habits upon
  which life, liberty and property and all other
  individual and social goods ultimately depend.
  Glendon

34

• Glendon calls for a better use of the notion of
  rights in our society a better way of thinking
  about rights - not for an end to rights
  themselves.
• A refined rhetoric of rights would promote
  public conversation about the ends towards which
  our political life is directed. It would keep
  competing rights and responsibilities in view,
  helping to assure that none would achieve undue
  prominence and that none would be unduly
  obscured.

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Waldron on the Justification of Fundamental
Liberal Rights

• Waldron wants to defend the value of a regime of
  liberal rights against its critics (Young,
  Davies, Sandel, Hutchinson and Monahan).
• Marxists, communitarians and feminists have
  criticised liberal rights theorists for
  suggesting that the bonds of social life should
  be thought of as constituted primarily by the
  rights and rights based relations of initially
  atomistic individuals.
• Waldron argues that an effective defence of
  liberal rights should argue not that a structure
  of rights is constitutive of social life, but
  that it is a position of fallback and security in
  case other constitutive elements of a social
  relation come apart.
• There is a need for an array of formal and
  legalistic rights and duties, not to constitute
  the affective bond but to provide each person
  with secure knowledge of what he can count on in
  the unhappy event that there turns out to be no
  other basis for his dealings with others.

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• A pure ethics of care without rights assumes that
  all people are or will be in fact adequately
  cared for by others.
• If implemented it would provide people who are
  without powerful and well-resourced carers with
  no security of person of their person or
  property. They are at the mercy of other's
  feelings for them.
• Waldron argues that in a complex society such as
  ours many people are without powerful and
  well-resourced carers.
• Waldron argues that the 'ethics of care' critique
  is too optimistic, unrealistic and naïve about
  what is possible/feasible in a complex modern
  society where strong interpersonal relations are
  under pressure.
• Such critics dangerously underestimate both the
  possibility for things to go wrong for human
  beings and the need for some sort of background
  guarantee, on which in the last resort one can
  rely in the face of that possibility.

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• The other point Waldron makes is that a system of
  safety net rights enables people to leave the
  bonds of affection they exist within (leave their
  community and their roles within that community)
  and establish new bonds (join a new community and
  take on new roles).
• Waldron argues that we need a legal framework
  which transcends all local communities and which
  protects the ability of individuals within those
  communities to choose to leave those communities
  and/or forge new interpersonal and communal
  relations.
• Rights provide support and security during
  transitional phases in people's lives and in
  doing so facilitate personal freedom to choose
  one's relationships and community. This is one of
  the key functions of a regime of liberal rights.
• A society or world without rights would not be
  able to achieve the degree of prosperity and
  technological excellence that we presently enjoy
  because impersonal rights facilitate an effective
  economy domestically and internationally.

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• "The debate between communitarians and their
  liberal opponents is not between those who see
  social life as constitutively communal and those
  who do not. Nor is it between community and the
  values of bare individualism. It is between those
  who, on the one hand, yearn for communal bonds so
  rigid that the question of what happens when they
  fall apart will not arise or need to be faced,
  and, on the other hand, those who are, first,
  realistic enough to notice the tragedy of the
  broken bond and ask "What happens next?" and
  second, optimistic enough to embrace the
  possibility of the construction of new bonds and
  new connections and ask "How is that possible?"
  Waldron

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• Note the liberal emphasis on the unencumbered
  individual, free to shrug off her communal
  allegiances and whenever she chooses. She is not
  defined and constrained by her communal bonds as
  the communitarians assert.
• Waldron argues that we are able to take a point
  of view separate from that of our communal
  identity and consider the merits of our community
  and our communal identity.
• It is this non-communal aspect of our self which
  liberal rights domestic and international seek to
  protect and provide for.
• Rights express a public form of care.
• Fundamental rights provide a degree of security
  to people and therefore express a rule of law
  value.
• Welfare rights as an important component of
  Waldron's liberal rights framework. Not merely
  civil and political rights.