To speak of human rights is to speak of proportionality. Proportionality has been received into the constitutional doctrine of courts in continental Europe, the United Kingdom, Canada, New Zealand, Israel, South Africa, and the United States, as well as the jurisprudence of treaty-based legal systems such as the European Convention on Human Rights. This volume brings together many of the world’s leading constitutional proponents and critics of proportionality to debate the merits of proportionality, the nature of rights, the practice of judicial review, and moral and legal reasoning.

click here for publisher's site (USA)

In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.

click here for publisher's site
 

Twenty years after the Supreme Court of Canada's famous decision in R. v. Oakes (1986) interpreting the limitation clause of the Canadian Charter of Rights and Freedoms, the meaning, role, and normative foundation of the analysis for justifying the limits of constitutional rights remain controversial. The critical essays in this volume interrogate the central question raised by this limitation clause: what general conditions must be satisfied before a constitutional right's limit constitutes a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society?

click here for publisher's flyer

In studying Parliament, special attention is regularly awarded to the interactions between government and Commons, with the Commons identified as a singular body, united in its claims against or in support of the government. These and other commonplace understandings trade on an insufficiently political study of the constitution, highlighted by the relative neglect of the Official Opposition in public law thought. With the aim of rehabilitating the place of Her Majesty’s Loyal Opposition in political and constitutional theory, this essay explores the historical rise and present day responsibilities of the opposition and highlights how government and opposition are carried on by agreement and how the Opposition’s critical function is channelled, facilitated, and complicated by its pursuit of office.

Veronica Rodriguez-Blanco’s monograph, Law and Authority under the Guise of the Good (Hart 2014) is an insightful study of intentional human action. With special reference to Anscombe’s scholarship, Rodriguez-Blanco’s aim is to illuminate ‘the nature of human institutions such as law’ by reference to the wider study of human affairs, specifically the philosophy of action (practical reason, human agency) and the idea of human goods as ends of human action. This essay offers two lines of inquiry for further reflection. The first examines whether Anscombe’s why-question methodology, deployed with success at several stages of the book’s argument, can arrive at the book’s ultimate aim: to ‘fully grasp the nature of legal authority and legal normativity’ (13). I offer a friendly amendment or clarification to demonstrate how it can, so long as two different ways of asking why are distinguished. The second line of inquiry is whether identifying undifferentiated ‘good-making characteristics’ as the end of intelligent action is a sufficiently secure foundation for developing a general philosophical understanding of law. I invite Rodriguez-Blanco to develop an account of the good that could ground not only a reason to comply with the law, but more forcefully a (defeasible but) decisive reason to do so.

What is the relationship between absolute rights and the principle of proportionality? Proponents of proportionality in human rights law adopt one of two answers to this question: proportionality is inapplicable to absolute rights or absolute rights are no more than generalised predictive conclusions of proportionality analysis. Both answers share the following in common: proportionality is incompatible with absolute rights. That incompatibility is a function of the dominant conception of rights in proportionality analysis, a conception that divorces rights from the relationships between persons constitutive of rights and right relations. My argument begins by reviewing how absolute rights earn their claim to being absolute in part because they identify duties held by persons not to perform certain acts (sec. I). The relationship between absolute rights and the specification of rights is explored next by reviewing the ways in which the doctrine of proportionality struggles with absolute rights (sec. II). This review highlights how rights are imperfectly constituted by proportionality proponents (sec. III) and in need of proper specification so as to align their normative force and scope (sec. IV). This account of specified rights as candidates for absolute status is then defended against criticism by Aharon Barak and Kai Möller (sec. V), before exploring how the specification of rights is secured both by morality and by law (sec. VI).

For the study of human affairs, there is a strategic question that directs inquiry: why? Why did persons act the way they did? What were their reasons for so acting? When one seeks to study human affairs of a time and place, one puts the question 'why?' to the persons of that time and place and seeks to understand their reasons for acting, as they conceive them. But when one seeks to study human affairs generally, one puts the question 'why?' to oneself and interrogates what truly good reasons there are for acting. Law earns a place in the study of human affairs only if there are truly good reasons to favour it and, if there are, those reasons will identify the central case of law, which will be united with the law of different times and places by a network of similarities and differences. The argument suggests that there is an order of priority in the questions one asks in order to develop a general theory of law: ask 'why choose law?' before and in order to answer 'what is law?'

click here for full text via OUP [ON CAMPUS]
click here for full text via OUP [OFF CAMPUS]

On the understanding of some, the United Kingdom has no constitution. The absence of a written constitution troubles those who look for certitude in things settled and, with the exception of some so-called constitutional statutes thought now too important to repeal, nothing within the British constitution is settled because everything is liable to change. On this understanding, the United Kingdom has what may be called “politics without a constitution”. On another view, the constitution is to be equated with a program of principles. These principles precede political activity so as to set it to work and cabin politics within a constitution. The United Kingdom has, on this view, a constitution—it is not written, but it is what guides constitutional actors, just as written constitutions in other places and at other times have guided political activity there and then. In this review essay of Martin Loughlin's The British Constitution, I explore whether political activity can be understood not quite as without or within but, in important respects, as the British constitution.

click here for full text via OUP [ON CAMPUS]
click here for full text via OUP [OFF CAMPUS]

This chapter defends a simple proposition: rights matter. It is a troubling reflection of the current state of juridical thought that it is in relation to human rights law that the proposition is defended. In an effort to reclaim rights from the position of inconsequence to which they have been relegated by the received approach to human rights law, the chapter draws attention to the equivocation in the use of the term ‘right’ in the catch-phrases ‘Everyone has a right to ...’. In reasoning towards the states of affairs and sets of interpersonal actions, forbearances, and omissions that realise rights in community, one merely begs the question by affirming as conclusive that one has a right to life, liberty, etc. The practical question is what, specifically, is to be established and brought into being in order to realise one’s rights. The chapter’s main contention is that rights are conceptually interrelated to justice and acknowledge the foundational equality of persons by delimiting what is due to each member of a political community. This frame of analysis is deployed to criticise proponents of the received approach and to re-order the relationship of rights to law.

click here for LSE working paper: SSRN

This essay reviews John Griffith's accounts of the constitution, specifically in relation to the relationship between government and the Westminster Parliament. Interrogating Griffith's claim that there "can be no persistent, fundamental or constitutional conflict" between the government and the House of Commons, it surveys the practices of conflict management observed by government and opposition.

click here for access via Westlaw [ON CAMPUS]
click here for access via Westlaw [OFF CAMPUS]

Rationalism is ‘the stylistic criterion of all respectable politics’. So lamented political philosopher Michael Oakeshott in a series of essays published in the 1940s and 1950s. Rationalism, for Oakeshott, is shorthand for a propensity to prioritise the universal over the local, the uniform over the particular and, ultimately, principle over practice. It culminates in the triumph of abstract principles over practical knowledge in a manner that erodes our ability to engage in political activity. Although Oakeshott’s critique was made with the practice and study of politics in mind, it has a wider relevance. For rationalism, as we see it, has become the dominant style in public law. We draw upon Oakeshott’s critique to elucidate the risks associated with rationalism in public law and call for a renewed engagement with practical knowledge in the study of the constitution.

click here for full text via Wiley [ON CAMPUS]
click here for full text via Wiley [OFF CAMPUS]

In debates surrounding the rule of law, a recurring question has been whether a legal system’s commitment to legality is deficient absent the protection of human rights. Near absent from these debates is another central question animating the rule of law and its relationship to rights: the how of the guarantee, promotion, and protection of rights in law. This essay seeks to illustrate why this concern for the relationship between means and ends should be at the centre of debates surrounding the relationship of rights to the rule of law.

click here for access via Westlaw [ON CAMPUS]
click here for access via Westlaw [OFF CAMPUS]

In this review essay on James Allan’s The Vantage of Law (Ashgate, 2011), I examine the methodological contribution to the study of law charted by HLA Hart’s distinction between the internal and external points of view. Understanding law as establishing reasons for action animates the essay’s review.

click here for Constitutional Commentary

La relation entre l’activité politique et la constitution de Westminster peut donner lieu à deux interprétations: soit l’activité politique s’opère à l’intérieur de la constitution ou elle est sans contrainte en l’absence de constitution. Une interprétation différente est ici explorée. En invitant une étude de la constitution de Westminster centrée sur les relations multiples entre les acteurs constitutionnels, l’activité politique se comprend non pas à l’intérieur de la constitution ou sans elle, mais bien comme la constitution elle-même.

English translation: The relationship of political activity to the Westminster constitution might give rise to two understandings: either political activity operates within or is unbounded by the absence of a constitution. A different understanding is here explored. By inviting a study of the Westminster constitution centred on the many relationships between constitutional actors, political activity is understood not as within or without, but as the constitution.

click here for Jus politicum

There is no one perfect system of political financing. The design and development of public policies to regulate the sources of funding for candidates and political parties and their permissible expenditures are influenced by a myriad of mutually reinforcing and, at times, opposing considerations. Political financing regulation constitutes a quintessential form of polycentric decision-making, whereby each design component is connected to every other in ways not wholly understood. This essay draws on the political financing systems of the United Kingdom, Australia, Canada, New Zealand, and the United States to develop a typology of policy options and to examine how each choice relates to every other.

click here for access via Westlaw [ON CAMPUS]
click here for access via Westlaw [OFF CAMPUS]

This essay seeks to explore originalism as something other than a theory of interpretation. This might strike one as odd. After all, if originalism is a theory of interpretation, how else might one seek to understand it? Yet, conceiving originalism as something other than a theory of interpretation may reveal insights that otherwise would remain beyond one’s immediate grasp. Recognising this potential, I reflect on how originalism can be understood, not as a theory of interpretation, but rather as a constitution. In short, the query explored is: What is an original constitution? What model of a constitution does originalism contemplate? Now, attempting to design an original constitution may suffer from the same contests facing any account of originalism. Different originalists make different commitments, and any attempt to select among them will be vulnerable to criticism. Despite differences between originalists, three commands and commitments can fairly be attributed to originalism without raising too much contest: the original constitution is written at the founding and changed only by the amendment procedure it sets out, is law insofar as it provides rule-like prescriptions, and occupies a delimited domain, leaving the rest to democratic activity. The model of an original constitution here elaborated seeks to provide a model of a fictional constitution that satisfies, perhaps to a fault, the key commitments and commands of originalism. It seeks to bring to light the commands and commitments originalism would have of us, and of constitutions.

click here for publisher's site

Working Paper: FULL TEXT [SSRN] | [LSE COPY]

The question—what is a political constitution?—might seem, at first blush, fairly innocuous. At one level, after all, the model of a political constitution seems fairly well settled, at least insofar as most political constitutionalists subscribe to a similar set of commitments, arguments and assumptions. At a second, more reflective level, however, there remains some doubt whether a political constitution purports to be a descriptive or normative account of a real world constitution, such as Britain’s. By exploring the idea of a political constitution as differently articulated by JAG Griffith, Adam Tomkins and Richard Bellamy, this essay explores why the normativity of a political constitution may be indistinct and ill-defined, and how compelling reasons for this indistinctness and ill-definition are to be found in the very idea of a political constitution itself. A political constitution is here conceived as a ‘model’ which supplies an explanatory framework within which to make sense of constitutional self-understandings. The discipline of thinking in terms of a ‘model’ opens up a critical space wherein there need not be some stark, all-encompassing choice between constitutional models, which, in turn, allows for more subtle understandings of Britain’s constitution as neither exclusively ‘political’ or ‘legal’.

click here for full text via OUP [ON CAMPUS]
click here for full text via OUP [OFF CAMPUS]

Constitutional rights scholarship is anchored in the cult of proportionality and balancing. Despite the absence of reference to proportionality or balancing in most State constitutions or international conventions, scholars and judges alike have embraced a vocabulary of proportion, cost, weight, and balance. Drawing on the work of German scholar Robert Alexy and Canadian scholar David Beatty, this essay attempts to illustrate how the principle of proportionality conceals more than it reveals in rights-reasoning. By challenging the contemporary cult of practical reasoning over rights, the essay advocates a turn away from a methodology and vocabulary of proportionality in favour of a more direct struggle with political-moral rights-reasoning.

Constitutional scholarship has been exploring the idea that the court and the legislature engage in a dialogue over the meaning of the constitution. Yet, despite many contributions to the idea of dialogue over the last decade, its potential remains unfulfilled. The epistemological potential of dialogue remains understudied, in part because the court continues to be viewed as the supreme, if not also the sole, expounder of the constitution. For dialogue's potential to be realized, the legislature should be acknowledged as a co-ordinate actor in expounding constitutional meaning and both court and legislature should assume a disposition for dialogue.

click here for full text via OUP [ON CAMPUS]
click here for full text via OUP [OFF CAMPUS]

This essay challenges the received approach to the limitation of rights in Canada, arguing that the Supreme Court's jurisprudence has strayed from the path set by the Canadian Charter's limitation clause. The Supreme Court employs the key words 'infringement', 'impairment', 'breach', and 'violation' to trigger a proportionality analysis, with the consequence that the limitation clause analysis is looked upon with suspicion as a defence for the infringement of constitutional rights. Yet, the limitation clause speaks of a right's limit, which is synonymous with its 'boundary', 'demarcation', and 'border', suggesting that a limitation clause serves as a gateway for specifying and defining indeterminate rights. This understanding allows for rights to be situated within, rather than opposed to, a free and democratic society. In this way, the legislature's acts become a source for the definition of rights rather than their violation and all rights become candidates for being absolute.