Normative and Institutional Dimensions of Rights’ Adjudication Around the World

Since the Second World War, rights discourse has established itself as a common currency of both politics and law.

For a good discussion of these developments, see Akira Iriye & Petra Goedde, Human Rights as History, inThe Human Rights Revolution – An International History (Akira Iriye et al. eds., 2012).

From very early on, law has been associated with justice. Natural law has always based its claim to superior normative status on the existence of something—a divinely ordained order, moral rights, reason, etc.—which “naturally” prevails over whatever particular rules may be in place at any given time and space. Already in Hesiod we find an implicit adumbration of natural law or, rather, an application of the term nomos to domains for which we would nowadays use “natural law”:

The co-existence of natural law and positive rules imposed by force was nonetheless perceived as a source of conflicts, and potentially tragedy. The most famous example of such a conflict can be found in Aristotle’s analysis of Sophocles’ “Antigone” in his “Rhetoric” and, in particular, in its discussion of the conflict between Antigone and Creon, king of Thebes. The conflict was, in mundane terms, between Creon’s edict requiring that Antigone’s brother’s body remain unburied on the battlefield, prey for carrion-eaters, and Antigone’s claim to a right to bury her brother. Aristotle describes Antigone’s claim as being based on natural law,

Id. at 390.

Greek theorists of natural law, such as Plato and Aristotle, thought right conduct and right law were both equivalent and objective facts. This identity between objective morality and natural law was shared by the Stoics. Stoicism equated nature with God, the perfectly rational and all-pervasive cause of the Universe, and took the world as a whole to be divinely and rationally administered. They argued that, by properly reflecting on the natural order, one would recognize that goodness and authentic lawfulness consist in conformity to correct reason.

Long, supra note 8, at 421-26.

This Stoic idea of natural law gained widespread currency through Cicero’s works on political theory. In “The Republic”, Cicero writes down what is for many the classic definition of natural law:

Id. at 429.

This line of thought was coupled with Christianity – with its emphasis on the universality of Revelation – by Saint Paul.

See for example, EPISTLE TO THE ROMANS ch. 2:14–15.

In time, this “second causes” doctrine became the seed for the move from a divine to a purely rational foundation for natural law.

Antonio M. Hespanha, Panorama Historico Da Cultura Juridica Europeia, 143-44 (1998).

The parents of jusnaturalism, both of religious and secular bents, are thus Greek ethical objectivism and Christian epistemic universalism.

Gunther, supra note 18, at 119, 138. Cf. David Oderberg, Real Essentialism (2007).

The concept of natural law reviewed thus far did not require subjective rights vested in individuals and enforceable against the community.

Loughlin, supra note 7, at 116; more generally, John Millbank, Against Human Rights: Liberty in the Western Tradition, 1 Oxford J.L. & Religion, 203 (2012).

The idea of grounding the rights of individuals in a state of nature previous to the creation of the state was strikingly original. Taking on a life of their own, subjective rights would eventually become a crucial conceptual toolbox in the development of modern natural law conceptions of the sovereign State.

Skinner, supra note 23, at 176-78, 184.

At the dawn of the modern age, the basic subjective and objective elements required for the placement of some individual rights above general law were in place.

It should be emphasized that the concept of political sovereign was developed alongside that of individual rights, even if only at the pre-political stage.

It was at this point that a crucial step in the conceptualization of individual rights against the state was taken: secular natural rights were moved from the pre-political to the political realm by John Locke.

It could be argued that individual rights of divine origin were already “political” under the original formulation of the right of rebellion by the School of Salamanca.

The heirs to Locke’s philosophy were the British of the Glorious Revolution and their fellow countrymen, the American colonists. For our purposes, however, the impact of this philosophy was greater in America, where the concepts of a written constitution and of individual rights that are judicially enforceable against the State were first implemented. Before independence, company charters granted by the British Crown had established—in writing—a governing framework for the colonies that neither the chartered companies nor the colonists could alter.

For an elaboration of this, and for examples, seeLoughlin, supra note 27, at 279.

The intellectual underpinnings of these developments were naturalistic theories of rights understood to provide universally accepted objective principles that posed “natural” limits to those in power. The result was a mechanism for constraining public power by delimiting a sphere of individual freedom as against the State—constitutional rights

Supra note 1.

Building as they do on these blocks, constitutional rights have a number of perceived characteristics around the world. First, they are said to reflect objective values. Second, given that they are grounded in a rational order, they can be subject to “reasoning” through “logic”. Accordingly, rights’ reasoning based on objective readings of natural law allows one to be right about her value judgments.

Duncan Kennedy, The Critique of Rights in Critical Legal Studies, inLeft Legalism/Left Critique 184-5 (Wendy Brown & Janet Halley ed., 2002).

This is a tradition that to this day remains intellectually fertile, as evidenced by the number of theories of “correct” interpretation of constitutional rights that were developed and found a receptive audience over the last decades.

See, for example Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics (2d ed. 1986); Ronald Dworkin, Taking Rights Seriously (Harv. Univ Press ed. 1977); Ronald Dworkin Objectivity and Truth: You’d Better Believe, in 25 Phil. & Pub. Aff 87 (1996); John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980); John Rawls, Political Liberalism (Colum. Univ. Press ed. 1996). While this seems to be a mainly American endeavor, it has recently been spreading globally along with the influence of the rights’ revolution: see, for example, Aharon Barak, Proportionality and Principled Balancing, 4 L. & Ethics of Hum. Rights 1 (2010).

There are myriad constitutional rights’ theories that seek to develop principles for identifying “one right solution” to legal problems. Some theories openly ignore existing law and focus on what the law should be on the basis of some select normative factor. Normative basis for such theories include welfare maximization

This underpins the “law and economics” movement.

These approaches are also all monist—they assert the priority of one value over all others and elaborate theories based on that foundational value’s primacy

Richard Posner, Against Constitutional Theory, 73 N.Y.U. L. Rev. 1, 2 (1998); Richard Posner, The Problematics of Moral and Legal Theory, 5 (1999); Robert H. Bork, Styles in Constitutional Theory, 26 S. Tex. L. J. 26 383, 384(1985). This paper does not take any position on the ideal method of interpreting the U.S. Constitution, nor do these criticisms (of what are mainly liberal constitutional theorists) amount to an endorsement of originalism in any of its forms.

It is submitted that this “monism”, and its dependence on “strong” forms of rationality, are not sustainable given the impossibility of gaining access to the contents of a detailed, objective moral order. This critique is not new. It is based on value pluralism, an idea that was at the heart of Isaiah Berlin’s work

Loughlin, supra note 7, at 40; Alasdair Macintyre, After Virtue 143 (3d rev. ed. 2007). This is not to say that the intellectual tradition sustaining this approach is not long-lived: it can be traced back to the Greek Sophists, and particularly to Vico, Herder, and the Counter-Enlightenment and Romantic movements in general: seeIsaiah Berlin, The Proper Study Of Mankind: An Anthology of Essays 243, 553 (Penguin Books ed., 2013) (1997).

(a) there is a multiplicity of values that are not merely different manifestations of one supreme value;

(b) there are incompatible values, meaning values cannot all be realized in the life of a single individual, nor, when we consider values that can be instantiated by societies, can they be realized by a single society.

As a result, the difference between values is not merely quantitative but qualitative – and different values may be incommensurable.

Taylor, supra note 30, at 138.

This is not to say that all questions about goods and values must always shipwreck on the rock of incommensurability—commensuration of goods and evils will usually be available as regards alternative courses of action, insofar as the deliberation about the alternatives remains in the technical domain, as in certain types of cost-benefits analysis.

Finnis, supra note 47, at 238.

Despite this, if it is accepted that incommensurability exists, this has significant consequences for constitutional adjudication. Value pluralism can translate into legal uncertainty when legal norms reflect different values and: (i) there is no express hierarchy of norms or order of value which prioritizes some values over others; and (ii) there is no other accepted legal method or criteria for balancing and prioritizing conflicting values. These conditions tend to be met by constitutional law. Constitutional instruments often express incomplete agreements regarding competing legal values. Most legal orders pursue a number of different constitutional objectives without a clear hierarchical relationship, and without providing a formula on how to resolve conflicts that may arise between those objectives.

Gunnar Beck, The Legal Reasoning of the Court of Justice of the E.U. 83-84 (2012). This is particularly the case with national and international bills of rights, which will unavoidably contain values that are incompatible, incommensurable, or both. For a thorough discussion of legal uncertainty regarding rights’ adjudication resulting from value pluralism, with examples drawn from the ECHR, the Human Rights Act, and the U.S. Bill of Rights, see id. at 86-90.

Value pluralism poses a threat to the modern rights culture at a basic level, by challenging its very premise that a monist prioritization of individual and societal values is possible.

Beck, supra note 4, at 317.

This limitation of monist approaches to constitutional rights can be demonstrated by reference to the monist theories reviewed above. While monists agree that there is one “correct” articulation of the “good”—i.e., they agree that objectivity is possible,—they differ as to what that “correct” normative framework should be. As noted by Sen, all these theories agree that universally applicable constitutional rights extend to everyone, and hence are said to promote some dimension of equality and non-discrimination. Discussions about whether equality is being observed are seemingly technical—after all, they require an empirical assessment of whether disparate treatment is taking place. Nonetheless, these theories invariably fall into a pattern of arguing against approaches ensuring equality in some dimension, on the grounds that they violate the more important requirement of equality in some other sphere. In other words, these theories disagree about the content of values and about their prioritization.

Compare, for example, the communitarian theories of Dworkin and Rawls with the libertarian theories of Nozick and Hayek.

It should be noted that the argument thus far has been framed in ontological terms, so one might legitimately ask: “how do you know monism is not correct?” This is a valid question, but unless there is a method to access objective moral reality, value pluralism has the same bite from an epistemological as from an ontological perspective. In the absence of some demonstration of the validity and contents of naturalism—i.e. a method allowing for the discovery of the absolute, universal foundation of the “good”—monist approaches must be considered arbitrary, with their adoption merely a function of their persuasiveness.

Taylor, supra note 30, at 142.

Those who reject purely monist approaches, or at the very least acknowledge that a legal problem can sometimes have more than one single solution, tend to drop grand substantive claims in favor of more limited procedural approaches. This usually leads to a defense of rights’ adjudication on grounds of procedural neutrality and rationality.

A good example of this are defenses of balancing, a technique which plays an important role in the case law of many constitutional courts.

Donald H Regan, The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause, 84 Mich. L. Rev 1091, 1101-8 (1986), describes a number of different balancing tests in the American context; Miguel Maduro, We the Court: The European Court of Justice and the European Economic Constitution 54-8 (1998) does the same in the European context. See also Möller, supra note 38, at 134-177.

For Alexy, constitutional rights are principles—i.e. standards of relatively high generality providing non-conclusive reasons for deontic decisions that may be displaced by other principles, including other constitutional rights. However, Alexy also sees constitutional rights as optimization requirements demanding to be realized to the greatest extent possible.

Alexy, supra note, 71 at 44.

However, Alexy himself refused the existence of an objective order of values that could determine a priori the content of adjudication, and expressly admitted that balancing does not lead to a single correct solution in each case. Nonetheless, while it is not possible to find a single substantive answer to all moral and legal questions, he argued that it is possible to develop procedural rules or conditions for rational practical argument.

Id. at 99, 365-370; Gustavo Zagrebelsky, Il Diritto Mite (The Mild Law) 170 (1992). A similar process-based theory has been advanced by Jurgen Habermas, Law and Morality in 8, The Tanner Lectures on Human Values (S. M. McMurrin ed., 1988).

From an objectivist perspective, the problem is that this neutral, rational “procedural” test injects value-based considerations at two moments: when determining the relative “weight” of the principles involved,

Which, as has been noted, are usually assumed to be of equal weight, which is not appropriate for situations of incommensurability — see Alder, supra note 61, at 717.

In other words, “balancing” tests are neither purely procedural nor completely neutral. Instead, they require (substantive) value judgements. This means that balancing and proportionality exercises do not bring absolute transparency and objectivity to rights’ adjudication.

Endicott, supra note 58, at 328. In the light of this, some authors have favored abandoning balancing and proportionality as a viable and rational form of judicial argumentation and decision-making: see Stavros Tsakyrakis, Proportionality: An Assault on Human Rights?, 7 Int’l J. Const. L. 468 (2009).

In short, rights’ adjudication always requires the exercise of a certain amount of political discretion on the part of courts. This, in turn, raises the question of whether courts are competent and legitimate to pursue such a role.

Prima facie, courts face structural limitations that would seem to make them unsuitable to engage in the political role inherent to constitutional rights’ adjudication. Courts often lack expertise and resources; have high administrative costs; are subject to information biases in favor of those sufficiently organized to participate in the judicial process; may decide issues without hearing some of the affected interests; do not have the advantage of determining when to adopt politically charged decisions; and lack democratic legitimacy.

However, institutional choices occur in a world of second-bests. The question is not whether courts are ideally suited for politically charged adjudication; it is how they compare to legislatures and governments. In particular, political processes can be subject to both majoritarian and minoritarian biases which may make the allocation of decision-making powers to courts appropriate. Majoritarian biases occur when the majority adopts decisions that ignore or disproportionately harm the interests of minorities. A particular concern is with acts where: “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.”

United States v. Carolene Products Co., 304 U.S. 144,153 n.4 (1938).

In a democratic context, there will normally be a presumption that politically controversial topics are best left to democratically legitimate bodies. And yet, from a comparative institutional perspective there may be situations where courts may be the preferable decision-making body, even if those situations will usually only arise extraordinarily—e.g. situations where the decision affects civil liberties and human rights (in particular situations concerning the prevention of outcomes which are morally intolerable for the relevant polity, or even for humanity as a whole), or where the protection of the integrity of the political process is at stake.

An important, yet subtle consideration which is relevant for any institutional comparative choice is the iterative relationship between the process through which the relevant bodies reach their decisions and the identification of the entity better suited to decide certain matters. The way courts construe constitutional rights will be relevant to the desirability of having them decide constitutional rights’ questions in the first place. This can be exemplified by reference to balancing and proportionality. While it may be considered a disadvantage that balancing and proportionality leave a wide margin for subjectivity, these legal techniques also acknowledge the existence of clashes of rights and recognize that there is no ready-made answer to them.

Xavier Groussot, Rock the KaZaA: Another Clash of Fundamental Rights, 45 Common Mkt. L. Rev. 1745, 1762 (2008).

This may well be deemed a comparative institutional advantage of courts over other institutions—including democratic representative bodies—as decision-making loci. In certain cases, it might be preferable that the subjective value assessment inherent to some political decisions occurs under conditions that are subject to rational control and criticism: legal reasoning aspires to objectivity

Neil Maccormick, Practical Reason in Law and Morality 192 (2008).

In other words, judicial practice, the issue to be decided, and the relevant social, institutional and political environment are all relevant to the comparative institutional choice of whether courts should make the value choices implicit in constitutional rights’ adjudication. In particular, courts may be better placed to decide charged political questions if they do so within an operative and cognitive framework that recognizes such practice as legitimate—e.g. when courts are explicitly granted jurisdiction to decide such cases in the first place. Importantly, such operative and cognitive frameworks are usually time- and place-specific, which means that the relevant comparative institutional choice depends on the particular socio-legal context in which it occurs.

While context is crucial to determine whether courts should adjudicate on constitutional rights’ cases (and to identify which constitutional rights should be subject to judicial adjudication), it is also important to the way courts should decide cases.

Even if constitutional adjudication needs to decide between values that will often be incommensurate, this does not mean that there will be no sound reasons for courts’ decisions on questions involving those values. A first step in the analysis of a constitutional right is to look at its normative foundation, and identify the “good” that it seeks to protect. This is crucial not only in order to take the right seriously, but also to determine the normative content of specific constitutional rights. While this content may not be precisely defined, it will be limited to a number of normatively acceptable possibilities.

Jeremy Waldron, Is Dignity the Foundation of Human Rights?, in Philosophical Foundations of Human Rights 125-133 (Rowan Cruft et al. eds., 2013).

A particularly relevant consideration regarding constitutional adjudication between multiple incommensurable values is that the absence of one right solution does not mean that one is unable to identify which solutions are wrong. Furthermore, while collisions between values cannot be avoided, deciding between them need not be irrational.

Klatt & Moritz, supra note 80, at 697.

Even if practical reason is unable to achieve a full commensuration of incommensurable things or to arrive at a single right solution, it can still hold the ring by disqualifying countless “solutions” as contrary to reason and wrong.

Finnis, supra note 47, at 252-53.

In societies coherent enough to solve their problems peacefully, disagreements about incommensurable values will be contained within a framework of shared views: they will be instances of bounded disagreement that only make sense in a context of bounded pre-agreement according to which different people may legitimately stake opposing claims regarding certain matters. Importantly, in most contemporary Western societies, it is accepted that (some of) these disagreements can be addressed through rights’ adjudication.

Raz, supra note 95, at 51. This is similar to, and builds on, the sharing of rules of language necessary for communication: disagreement must be preceded by agreement about the framework in which it occurs; seeJoseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason 62-63 (2009), following Wittgenstein’s rule-following argument in Philosophical Investigations (1958).

On the other hand, the alternative institutional options may be even less apt than courts; in extreme cases, there may be no way to arbitrate between different societal claims other than by a contest of force. Legal and political processes ultimately seek to stave of recourse to violence in the resolution of societal disputes. One way this has been pursued in Western political and legal culture is through the implementation of distancing devices for certain forms of decision-making—i.e. mechanisms for the settling of disputes in a way that is as independent as possible of the personal tastes of the relevant decision-makers.

Raz, supra note 117, at 368-69.

These distancing mechanisms include not only the creation of neutral courts comprising impartial judges—with all inherent institutional protections against external influence and interference—but also distinct modes of legal reasoning. Even when facing situations with different legitimate solutions, judges are expected to invoke only those reasons that are recognized by law.

Raz, supra note 74, at 200 and 208; Jeremy Waldron, Representative Lawmaking, 89 B.U. L. Rev. 335, 336 (2009).

It is a common understanding of a shared “story” about the contents and existence of a legal order that makes such a legal order authoritative within a community. Similarly, it is the obeisance to social practices and shared understandings by a legal community, which are in turn in accordance with a more general common understanding of what is legitimate law, that determines what judges can legitimately decide.

Robert Cover, Foreword: Nomos and Narrative, 97 Harv. L. Rev. 1 (1982); Gerald Postema, Implicit Law, 13 Law & Phil. 361, 369-371 (1994).

The existence of these shared cognitive frameworks usually goes unremarked because it is unremarkable; it is part of what has been called the “tacit dimension”— propositions and opinions shared by a group and deemed so obvious that they are never fully articulated or systematized.

Michael Polanyi & Amartya Sen, The Tacit Dimension (2009).

While recourse to certain modes of legal reasoning can be seen as an advantage for courts over other decision-makers when making the type of value choices inherent to rights’ adjudication, such an advantage can come with a cost— an increased perception of judicial interference in political processes, and a focus on the lack of (democratic) legitimacy of courts.

Loughlin, supra note 7, at 130 (quoting Koskenniemi, supra note 3, at 100).

One way to address this is to abandon the pretense that legal reasoning about constitutional rights’ can lead to a single right solution. Instead, courts should focus on why they have been chosen to deal with conflicts of constitutional rights, and on the powers that such a choice grants them. Prudential reasons—including local and situation specific reasons—should be brought to the fore and given greater prominence. This should create a sense of judicial humility for rights’ adjudicators. Striving for reason but recognizing that subjectivity and discretion play their part, courts should reflect on their—and others’—limitations when adjudication constitutional rights’ cases. As Isaiah Berlin noted: