Legislated Rights is an important and essential addition to the library of anyone seeking to better understand the potential role of and justification for legislatures engaging in the protection and promotion of human rights. By skillfully explaining and building upon the four counter-theses that refute what are identified in the book as the four conventional theses typically used to justify judicial dominance or supremacy in the area of rights protection and promotion, the authors of Legislated Rights posit a convincing and scholarly foundation for resuscitating a legitimate role for legislatures in the protection, promotion and interpretation of human rights. Regrettably, and for too long, the potential for such a weighty legislative role has been either underestimated or, more typically, dismissed as institutionally incongruous.
The publication of Legislated Rights represents a thoughtfully conceived and tightly argued piece of scholarship, whose relevance transcends the academy. The collaborative and coherent focus of the book’s six co-authors advance one central claim throughout seven inextricably connected chapters. The first six chapters identify in different ways the goods to be achieved by legislative decision-making. The final chapter examines the practice of judicial review and asks whether that practice under a bill of rights is inconsistent with the theory of legislated rights defended in the book. In noting that judicial review is itself “not risk free”, the final chapter also persuasively notes that the evidence suggests that “human rights litigation is increasingly a second forum for law-making (or law-unmaking)” in respect of policy preferences or proposals “that have failed a legislative vote for reasons other than the majority’s contempt or disregard for any person or group.”
The book’s central argument explores the moral value of legislation and its capacity to realize human rights. For the authors, legislation or statutory law is, in its ideal usage, made for the common good across a range of human values, goods and needs. Properly conceived legislation should exhibit the virtues of generality and clarity. In the end, legislatures exist to coordinate and make laws for the common good. In making laws for the common good, legislatures must promote the conditions necessary for each person to achieve his or her development and well-being without favouritism. It is in this way that a system of positive law can realize the promotion and protection of human rights in ways that otherwise fall outside the often narrow, legal and practical scope of judicial review.
In making the central argument they do, the authors acknowledge that they are setting out to “shift the key premises of debate in human rights law, where it is regularly assumed that human rights are the special province of the courts and that legislatures represent a threat rather than a means of protecting or promoting rights.”
Although the book provides no clear vision in respect to any model of co-ordinate interpretation—which some might say is a natural corollary of the book’s thesis—the authors do seem to suggest that human rights cannot be fully understood or realized in spheres that are exclusively judicialized and legal. Law’s point, say the authors, is to bring human rights into being in a political community and that is a task about which legislatures should not be indifferent.
Given the contemporary political and legal orthodoxies surrounding the study of rights, those in a liberal democracy who value human rights and who seek their vigilant protection and promotion, can perhaps be forgiven for believing that any properly functioning constitutional order will inevitably and necessarily privilege the role of the judiciary and the exercise of judicial review. Currently, when it comes to debating respective institutional roles relating to the protection and promotion of human rights, the potential of a more robust legislative branch or even a more balanced and symbiotic institutional interaction or relationship as between legislatures and the judiciary, receives little emphasis or attention. Even within those polities where some perfunctory recognition is made of a metaphoric dialogue as between the legislative branch and courts, any related discussion of an institutional interaction inevitably descends into a debate about “supremacy”. That discussion is more often than not defined by a reflex which, as Jeremy Waldron has noted, sees legal scholars glorify judicial review by simultaneously and contemptuously dismissing as vile the quality, conditions, motivations and passions of the legislative branch. Seldom is much weight given to the unique and potentially ennobling civic processes and habits that can be cultivated and inculcated in a political culture where a citizenry sees both its elected representatives and the judiciary taking rights seriously. Neither is much consideration given to how legislatures—with their own idiosyncratic deliberative and accommodating processes—can, through legislation, promote and protect rights in ways that potentially avoid the sometimes polarizing effect of zero sum constitutional adjudication. Insofar as there is any real debate surrounding the distinctive and comparative normative virtues of judicial, parliamentary or constitutional supremacy, such debates are frequently skewed, one-dimensional and, in the end, impoverished. Such debates, whether occurring in the legal academy or in the broader public square, seem too often limited by an inadequate study of or less than rigorous appreciation for the respective roles that can be played by equally strong and purposeful legislative and judicial branches working in constitutional orders where human rights increasingly shape public policy.
So it is into this context and gap that the authors of Legislated Rights provide their bold, valuable and legitimating contribution to the study of legislated human rights and what must be the connected and more energetic role of the legislative branch. For those who follow with some interest the scholarship in relation to theories of rights, and their place in the study of such fields as constitutional law, legal philosophy, political theory, the separation of powers and judicial review, the publication of Legislated Rights will provide a much-needed and new institutional dimension to the academic discussion of human rights protection and promotion. Indeed, it is this new institutional dimension that not only deserves but requires a broader audience. Whether it be members of the academy, the political class, the judiciary, the media or the general public, consideration and appreciation must be given to the valid and legitimate role the legislative branch can potentially play both by itself, and in its interactions with the judiciary in the promotion and protection of human rights. Such a recognition of the legislature’s role could provide not only an additional and distinct dimension and forum for the realization of human rights; it could also revitalize the moral work of elected representatives and possibly reignite the citizenry’s engagement with the big questions that make democratic politics and political parties meaningful.
As a Canadian jurist whose own institutional role is performed in a polity and political culture increasingly shaped and dominated by a justifiably celebrated constitutional instrument—the Canadian Charter of Rights and Freedoms— I completed my read of Legislated Rights by reaffirming the need to ask the following question: “Should the protection, promotion and interpretation of human rights be shaped solely or principally by even the most well-respected judiciaries?” For those fortunate enough to be able to read, absorb and reflect upon the many insights of Legislated Rights, they will discover that it is that very question which cannot be avoided as it reasonably but inexorably flows from the cogent analysis that pervades each and every chapter of this magnificent book.
Hon. Glenn Joyal is Chief Justice of the Court of Queen’s Bench in the province of Manitoba, Canada