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CONSTITUTIONAL RIGHTS, CIVILITY AND ARTIFICE

  • N.E. Simmonds

Abstract

The value of civility is grounded upon acceptance of the legitimacy of moral disagreement and the need for mutual respect and cooperation in the face of such disagreement. The distinction between rights and goods plays a fundamental role in the form of civility espoused by liberal society. Current models of constitutional rights and proportionality, in a variety of ways, erode that distinction and thereby place the liberal model of civility in jeopardy.

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Copyright

Corresponding author

Address for Correspondence: Corpus Christi College, Cambridge, CB2 1RH, UK. Email: nes1000@cam.ac.uk.

Footnotes

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Emeritus Professor of Jurisprudence, University of Cambridge; Fellow of Corpus Christi College.

This essay is loosely based upon a short lecture given at the inaugural meeting of the Sir Edward Coke Society on 1 May 2018 in the Faculty of Law, University of Cambridge. On that occasion, Professor David Feldman replied to my lecture and I am very grateful to him for his comments. I am also grateful to Jelena Gligorijevic, Ashley Hannay and Rajiv Shah for the invitation to give the lecture, and to the audience for their various responses to my remarks.

Footnotes

References

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1 Walzer, M., “Liberalism and the Art of Separation” (1984) 12 Pol.Theory 315.

2 Tawney, R.H., quoted in Rogan, T., The Moral Economists (Princeton and Oxford 2017), 47.

3 Prohibitions del Roy (1607) 12 Co.Rep. 64, 77 E.R. 1342, [1607] EWHC K.B. J23.

4 See Rawls, J., Lectures on the History of Moral Philosophy (Cambridge, MA 2000), 52.

5 A blurring which is encouraged by the most influential theories of law. See note 38 below.

6 See Moyn, S., The Last Utopia (Cambridge, MA 2012).

7 Such a semblance of commensurability may consist in no more than a formally structured requirement that one should assess the “importance” of different values, or the “seriousness” of various possible encroachments upon such values. This is a characteristic feature of the doctrine of proportionality which now forms an integral part of the law of constitutional rights.

8 Alexy, R., A Theory of Constitutional Rights, translated by Rivers, J. (Oxford 2002). Reliance upon the language of “optimisation” (or similar language) need not involve a direct denial of the diversity of forms of value. Rather, the language can be deployed in such a way as simply to abstract from the relevant differences. But such abstraction is itself an implicit denial of the importance of those distinctions.

9 Rawls, J., A Theory of Justice, revised ed. (Oxford 1999), 4.

10 See Simmonds, N., Law as a Moral Idea (Oxford 2007), 104–09.

11 The history and significance of this emergence is much disputed. See Brett, A., Liberty, Right and Nature (Cambridge 2003); Tuck, R., Natural Rights Theories (Cambridge 1981); Tierney, B., The Idea of Natural Rights (Grand Rapids, MI 1997); Strauss, L., Natural Right and History (Chicago 1953).

12 Maitland, F.W., A Historical Sketch of Liberty and Equality (Indianapolis 2000), 90.

13 Williams, B., In the Beginning Was the Deed (Princeton 2005), 64. We might wish to correct Williams's formulation in one respect. Rather than saying that one who denies a right to the right-holder “does wrong”, it would perhaps be better to say that the right-holder “is wronged” when their right is denied to them. Both formulations make it clear that a right is not simply a good to be optimised. But the latter formulation is compatible with the view that there may be situations where the violation of a right is justifiable, in spite of being a wrong to the individual concerned. This helps to distinguish rights with peremptory force from the absolute rights of the natural law tradition. There is a further respect in which legal rights possess peremptory force without being absolute: their binding force is dependent upon their basis in mutual civility. See note 21 below.

14 Here I ignore certain complexities. For example, rights hold against other juridical persons. Thus I may have a right as against my neighbour but not in relation to some governing authority that requires planning permission for the planting of tall trees. Furthermore, rights can be Hohfeldian powers or immunities rather than claim-rights or liberties. Like claim-rights and liberties, powers and immunities are peremptory with respect to the issues that they govern. None of this affects the general point being made in the text.

15 Dworkin, R., Taking Rights Seriously (London 1977), ch. 2.

16 Hence the French doctrine of “abuse of rights” has sometimes been regarded as an illiberal subversion of the entire notion of a right: see Lawson, F.H., Negligence in the Civil Law (Oxford 1950). But see MacLeod, A.J., Property and Practical Reason (Cambridge 2015), chs. 6, 7.

17 Fuller, L., The Morality of Law, revised ed. (New Haven 1969), ch. 2.

18 See Simmonds, N., “Law as an Idea We Live By” in Duke, G. and George, R. (eds.), The Cambridge Companion to Natural Law Jurisprudence (Cambridge 2017); Simmonds, Law as a Moral Idea.

19 MacCormick, N., Legal Reasoning and Legal Theory, 2nd ed. (Oxford 1994), xi.

20 Alexy, A Theory of Constitutional Rights, p. 54.

21 As will become clear later in this essay, legal rights with peremptory force should not be equated with the absolute rights of the natural law tradition (rights which must in no circumstances be encroached upon). Theocentric natural law positions can argue that the future of the world is God's responsibility, while man's responsibility is one of obedience to God's law. But, in the absence of a belief in divine providence, a belief in absolute rights can seem puzzlingly fanatical. Legal rights are not absolute but bind in virtue of the value of mutual civility. When mutual civility genuinely breaks down, or the limits of mutual civility are exceeded, legal rights lose their peremptory force. See also note 13 above.

22 Jeremy Waldron has recently remarked upon the “drastically unmediated proximity” that obtains between individuals when they ascribe only instrumental importance to existing political structures. See Waldron, J., Political Political Theory (Cambridge, Mass., 2016), 15. We might think of this “unmediated proximity” as the absence of mutual civility.

23 See Simmonds, N., “The Bondwoman's Son and the Beautiful Soul” (2013) 58 Am.J.Juris. 111.

24 Moller, K., The Global Model of Constitutional Rights (Oxford 2012).

25 This is reflected in the idea that even those rights which might seem to impose only negative duties nevertheless require states to take positive steps to protect the relevant interests. Amartya Sen argues that, when rights are conceived of as defining or restricting permissible actions (rather than in terms of desirable outcomes), the rights conferred must nevertheless be selected by reference to their probable outcomes and are therefore parasitic upon the identification of desirable outcomes: Sen, A., The Idea of Justice (London 2009), ch. 14. Even if this is true (which I doubt) it does not alter the fact that rights defined by reference to permissible and impermissible actions (or choices) can be given peremptory force, while the ascription of such force to rights defined by reference to outcomes is likely to be very problematic.

26 Alexy, A Theory of Constitutional Rights, p. 54.

27 Beatty, D.M., The Ultimate Rule of Law (Oxford 2004), 41. It must be conceded that the US Supreme Court (Beatty's example of a rule-based approach) has not been very successful in articulating and adhering to such rules.

28 See note 8 above.

29 The likelihood of any such organic connection is considerably reduced by the fact that the bulk of ordinary legal rights are rights to specific actions: liberties to perform actions, or claim-rights to the performance of such actions by determinate others. Constitutional rights, by contrast, tend to be rights to independently describable states of affairs, or to the performance of an indeterminate range of actions by indeterminate others. I include some further remarks on this (and other related matters) in “Constitutional Rights and the Rule of Law” (2016) Analisi e Diritto 251.

30 Huscroft, G., Miller, B. and Webber, G. (eds.), Proportionality and the Rule of Law (Cambridge 2012), 1.

31 Webber, G., The Negotiable Constitution (Cambridge 2009), 4.

32 Moller, The Global Model of Constitutional Rights, pp. 73, 5n.

33 Aristotle, Nicomachean Ethics, Book V.

34 See Finnis, J., Natural Law and Natural Rights, 2nd ed. (Oxford 2011); Finnis, J., Collected Essays, Volume 4: Philosophy of Law (Oxford 2011), 12.

35 As noted by MacCormick, Legal Reasoning and Legal Theory; and Finnis, Natural Law and Natural Rights.

36 “(I)n complex societies, law is the only medium in which it is possible reliably to establish morally obligated relationships of mutual respect even among strangers.” Habermas, J., Between Facts and Norms, translated by Rehg, W. (Cambridge 1996), 460.

37 For the best defence of Radbruch's position, see Alexy, R., The Argument from Injustice (Oxford 2003).

38 In this essay, in the interests of simplicity, I try to avoid becoming entangled in the philosophical debate surrounding law's nature. It is, however, worth making a few remarks by way of clarification. In recent decades legal education has been influenced by a theory which claims that the interpretation and application of texts such as statutes and constitutions, beyond their “core of settled meaning”, involves open-ended policy choices. The approach rests upon a denial of the reflexive character of law (i.e. the need for doctrinal legal thought to be guided by reflection upon the idea of law). That denial, however, is misguided (as I have endeavoured to demonstrate in some of my other writings). A judge seeking to give effect to a statute or constitution must ask what the law-making effect of that document might be, and this necessitates reflection upon the nature of law. General policy considerations, if unconnected to the essential nature of law, are not, in themselves, pertinent in this context. On the other hand, the maintenance of law's peremptory force, and the avoidance of its collapse into a system of official (judicial) discretion, is of central importance. The judge's duty of fidelity to the idea of law (which is one manifestation of the duty of mutual civility incumbent upon every citizen) therefore requires the judge to seek an interpretation of constitutional rights that preserves, so far as possible, the peremptory and rule-centred character of law.

39 Alexy, A Theory of Constitutional Rights.

40 Alexy, R., “Comments and Responses” in Klatt, M. (ed.), Institutionalized Reason: The Jurisprudence of Robert Alexy (Oxford 2012), 331.

41 Such an interpretation is in many ways the most natural one to adopt. While undoubtedly creating problems of its own, it does at least focus judicial attention upon the issue of outright evil, and acknowledges the moral priority of mutual civility over this or that contestable idea of perfect justice.

42 Finnis, Natural Law and Natural Rights, p. 319.

43 The term “gross disproportionality”, although I have employed it elsewhere, is less than ideal since it appears to imply a continued reliance upon the proportionality approach as conceived in the current doctrine, with the latter's implicit suggestion of some form of commensurability or monotonic comparison. For this reason, the term “gross injustice” is preferable.

44 Meanwhile, many celebrate and seek to extend that power by invoking the image of a “dialogue” between the courts and the legislature. The image gains plausibility from the fact that adjudicative reasoning should properly be guided by an assumption that the established rules serve some coherent conception of justice. This is a feature of adjudicative reason that Dworkin has chosen to describe in terms of “collaboration” and “partnership”: see Dworkin, R., Justice for Hedgehogs (Cambridge, MA 2011), 136. But (as was pointed out above) it is the object of constitutional rights to provide a point of critical leverage upon established rules, not to explicate the conception of justice implicit within such rules. In this context, courts function as the critical censors of the legislature, not as their dialogic partners in a common project.

45 Moller, The Global Model of Constitutional Rights, ch. 5.

* Emeritus Professor of Jurisprudence, University of Cambridge; Fellow of Corpus Christi College.

This essay is loosely based upon a short lecture given at the inaugural meeting of the Sir Edward Coke Society on 1 May 2018 in the Faculty of Law, University of Cambridge. On that occasion, Professor David Feldman replied to my lecture and I am very grateful to him for his comments. I am also grateful to Jelena Gligorijevic, Ashley Hannay and Rajiv Shah for the invitation to give the lecture, and to the audience for their various responses to my remarks.

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CONSTITUTIONAL RIGHTS, CIVILITY AND ARTIFICE

  • N.E. Simmonds

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