Legislated Rights: Securing Human Rights through Legislation challenges ideas that find ready support in the case law of European and Commonwealth courts and the academic literature. We are grateful to our distinguished commentators, who have a wealth of judicial experience between them, for their careful commentary. It is encouraging they found much with which to agree in our contribution toward rehabilitating the role of the legislature in relation to human rights. In this response, we address various points raised in their comments.
The Right Honourable Beverley McLachlin, former Chief Justice of Canada (2000-2017), offers thoughts on two points: first, on the relationship between courts and legislatures in maintaining rights; second, on the relationship between the definition, the limitation, and the proportionality of infringements of rights.
On the first, Ms McLachlin shares the book’s thesis that the legislature has a responsibility to uphold and realise rights. It is a responsibility shared, she rightly says, by all branches of government and, for some rights, it is a responsibility for which the legislature is especially suited, such as for ‘positive rights, like [the rights to] health care and education’, where the ‘organizational challenges’ are ‘complex’ and require ‘large expenditures of public money’. Ms McLachlin finds it ‘more doubtful that legislatures are the sole, or even the primary, institutions to secure rights’ and she finds, in at least some of the passages in Legislated Rights, a ‘dualistic tone’ that presents a choice between either the court or the legislature. But this is a ‘false choice’ insofar as the relationship between court and legislature is ‘complementary, not oppositional’, as the court will intervene only ‘where legislatures fail to address rights problems’. The role of the court, thus conceived, is corrective.
We share Ms McLachlin’s thought that all branches of government have a responsibility towards rights. And we agree, subject to the qualification below, that court and legislature may complement rather than oppose each other in the protection, promotion, and realisation of human rights.
Chapter 6 explains one way in which legislative and judicial action can be complementary in the protection of human rights. It notes that when judges are in the position of enforcing vague standards (as most human rights are) they are exposed to pressure to reach results that are politically popular or supported by powerful constituencies. In contrast, when judges enforce specific norms (as many rights specified by legislation are) they are better able to withstand public criticism because they can ascribe their decision to the clear requirements of law. This account challenges the standard thesis that judges act from a secure counter-majoritarian position. And it helps to explain why, as documented in Chapter 5, courts have often struck down legislation in a way that favoured the powerful over the rights of minorities or marginalized groups. During the Lochner era in the US, and in many other instances concerning labour and civil rights laws, the most straightforward way for courts to promote human rights was simply to enforce the specific terms of the law rather than having recourse to judicial review. In turn, Chapter 7 in Legislated Rights confronts this question: given the potential pathologies of legislatures and legislation, is judicial review of legislation under a bill of rights a sound addition in a community’s commitment to human rights? The ‘corrective’ understanding of judicial review recommends one answer, but Legislated Rights concludes by introducing some complexity in evaluating that recommendation. It does so by reviewing some pathologies of human rights adjudication itself. These pathologies suggest that judicial review is beset not only by the risk of failing to intervene when courts should, but also by risks that may frustrate attempts by the legislature to realise rights in positive law.
Ms McLachlin’s second point relates to the conception of rights defended in Legislated Rights together with the criticism of proportionality and balancing as the main engines of judicial reasoning under human rights law. She ‘accept[s] the theoretical difficulty of telling people on the one hand that they have rights, and in the same breadth telling them that the state can take away or “defeat” those rights’. After a judicial career on the Supreme Court of Canada spanning almost the whole of the life of the Charter before that Court, Ms McLachlin affirms that ‘the question remains: should we devote more attention to defining the right as precisely as possible’?
It is a welcome question and one that runs against the tide of the dominant judicial method in European and Commonwealth courts. To Ms McLachlin’s invitation to revisit the conception of rights in human rights adjudication, we offer one further contribution. As reviewed in the fourth thesis/counter-thesis reviewed in the introduction to this forum, Legislated Rights defends a view of rights as specified such that their scope and justification align. We argue that insofar as the human rights outlined in human rights instruments are too open-ended to be non-defeasible, they should be understood to invite further specification. That specification needs to be made, in the first instance, through legislation. We argue that ‘human rights need positive law not only to add security for the respect of the rights of persons, but also to realise – by specifying in law – the requirements of human rights’ (14). The great complexity and organisational challenges that Ms MchLachlin rightly identifies with the specification of ‘positive rights’ extends as well, we argue, to ‘negative rights’, as when the legislature specifies the scope of freedom of expression in relation to false advertising, copyright and trademarks, tobacco advertisement, libel, and so on. This understanding of the legislative specification of rights runs up against dominant judicial understandings of proportionality, which oppose—by balancing against each other—rights and legislation. It is an impoverished understanding of rights, legislation, and their relationship, and we are much encouraged by the former Chief Justice’s invitation to question the dominant judicial methodology. It is an invitation that finds a ready audience in her former Court. In Frank v Canada, Justices Côté and Brown quote and cite Legislated Rights and criticize the dominant judicial understanding according to which legislation may justifiable infringe rights, correctly insisting that ‘[i]t distorts our constitutional discourse, and our understanding of rights and of the legitimate boundaries of state action, to speak of individuals having rights which may be justifiably violated by the state’.
Dyson Heydon, former Justice of the High Court of Australia (2003-2013), interrogates the role of force—more exactly, ‘enforcement’. Legislation, he rightly recalls, ‘does not operate directly on human affairs’ and is ‘nothing but aspirational if it is not enforced’, a task that falls to the judiciary. Whatever the ‘vices of judges, they will have to be endured’ irrespective whether they are enforcing a bill of rights, statutory law, or the common law. But some vices are not like the others, and Mr Heydon identifies ‘a marked vice’ animating some judges in modern times. It is the vice of ‘spin[ning] out of very general phrases’ of the sort found in bills of rights ‘meanings which are ahistorical, inconvenient, untrue to the provenance of law, and reflective only of individual judicial will’.
Mr Heydon’s reflections here affirm the arguments in chapter 6 of Legislated Rights on the need for legal direction in adjudication. The ‘very general phrases’ in human rights instruments are unlike much positive law insofar as they fail to provide legal direction. To the judge confronting a human rights challenge against commercial advertising restrictions, the guarantee ‘Everyone has freedom of expression’ takes one only so far. Legislated Rights reviews how adjudication in the absence of direction by positive law risks undermining the adjudicative function of courts, including by frustrating Rule of Law commitments to be governed by laws rather than persons. Chapter 6 argues that many of the commonly understood institutional advantages of courts are derived precisely from their commitment to decide cases according to law. More generally, the overarching argument of Legislated Rights contributes to an understanding of human rights law as far more encompassing than human rights instruments and the case law applying them. Its true scope is captured by understanding the multiplicity of ways in which positive law relates to human rights, such that the judicial enforcement of human rights is realised when judges enforce health regulations, tortious actions against assault, and freedom of information laws, to take but some illustrative examples. The enforcement of human rights is on the docket of courts every day.
Examples like these speak to Mr Heydon’s welcome insistence that the legislature’s ‘inherent capacity to take a general idea … and make it workable in its application to some concrete social problem’ is ‘the great virtue of the legislative technique’. Indeed, in the light of this great virtue, he refers to the book’s examples of the use of legislation ‘to solve particular problems which, under another guise, are human rights problems’, affirming that the examples ‘are obvious after one has read the book, but were not so obvious before’. Perhaps one of the examples that highlights most the wide scope of human rights law once reconceived according to the arguments in Legislated Rights is the one that expands on the Universal Declaration’s Article 25, which provides that ‘Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family.’ After reviewing legislative enactments respecting testing and approval for new drugs and mandating disclosure of contents of food products, we review how, ‘less directly but not less importantly, the right to health is secured and promoted by laws on pollution and clean air and water, and in establishing public works like sewer systems and waste removal’ (17). The ‘Sewage Act’ has none of the glamour of a ‘Human Rights Act’, but it makes a concrete and direct contribution to the health of individuals; it is precisely through such acts that the promise in a general phrase like ‘Everyone has the right to health’ is fulfilled.
Mr Heydon ends his comment by asking if Legislated Rights ‘takes a perhaps too optimistic view of legislation as it is’. He agrees that ‘[i]t can operate in a manner superior to judicially enforced bills of rights’, but queries whether it is ‘possible to say that it always does so’ and reviews many factors that might help explain failures in legislative action. The account of legislatures and legislation awarded explanatory priority in Legislated Rights is the central case of both – that is, the case of the legislature and legislation that are fully responsive to the reasons that favour introducing legal order, legal enactments, and law-making institutions in a community of persons. As we explain, the argument in Legislated Rights occupies a methodological middle ground between philosophy and empirical analysis. We argue that no amount of comparative empirical analysis can yield the philosophical argument we develop for legislatures and their relationship to human rights, but in turn it is an argument informed by and not blind to empirical realities. As we argue in our discussion of the central case method, the study of medicine proceeds on the basis of ideas about the healthy functioning of the body, and that is what enables doctors and researchers to identify pathologies; so, too, we argue, should this approach be adopted in the philosophy of law and human affairs. By understanding central cases of legislatures and legislation, we come to a richer understanding of what is flawed or lacking in deviant cases where legislatures and their enactments have failed to be what they ought to be. As we review below, our view of the legislature is neither optimistic nor pessimistic, but rather philosophical, general, and informed by empirical realities. Legislated Rights does not take a view of specific legislatures, but it does provide the resources for evaluating specific legislatures, their successes, and their failures.
The Honourable Sir Ross Cranston, who sat on the High Court of England and Wales, Queen’s Bench Division, from 2007-2017, affirms ‘a self-evident, if neglected truth’, namely that legislation promotes and is ‘a prerequisite for human rights’. That truth is related to three corollaries, all in line with the arguments developed in Legislated Rights. The first is that legislation, and its reliance on legal duties, ‘should not be seen as in opposition to rights or necessarily their enemy’. Professor Cranston here shares the book’s lament of the opposition between legislation and rights.
A second corollary is that the argument in Legislated Rights that legislation, in its central case, pursues the common good is ‘closer to the empirical reality’ than the conception of legislation ‘as some aggregate of community preferences’. Professor Cranston here speaks with much authority, having served as a Member of Parliament from 1997 to 2005 and as Solicitor General from 1998 to 2001. Though there are legislative perversions, Professor Cranston reports that for legislation ‘to win support, even among those normally in the majority, it must have a rationale which accords with some idea of community interest’. That idea is defended as counter-thesis 1, reviewed in the introduction to this forum.
A third corollary appeals to empirical evidence in the UK in support of the philosophical argument in Legislated Rights on ‘the role of the legislature in protecting minority rights’. Professor Cranston reviews some ‘legislated social reform for the benefit of minorities dating back to the nineteenth century’ that, though it ‘may have fallen short of the desirable, does not undermine the truth that legislation has performed the indispensable role in advancing minority rights’. This historical reminder of the acts of one legislature in one jurisdiction over a determined period of time affirms the more general, philosophical claims about the point and purpose of legislative action defended in Legislated Rights, including in counter-thesis 2.
Professor Cranston concludes his commentary with two ‘quibbles’, the first on the absence of discussion in Legislated Rights on ‘why legislatures fall short (or worse)’. A second quibble relates to how ‘the executive rates little mention’, even though in Westminster systems it will sponsor most primary legislation, enact much secondary legislation, and—beyond the legislative context—be ‘the target of human rights claims’. With regard to the first point, Legislated Rights contributes to the diagnosis of how legislatures fall short precisely by articulating an account of well-functioning legislatures. We show how influential theorists have characterised as paradigmatic what ought to be understood as legislative pathologies, and this clarification can contribute to the analysis of legislative shortcomings. The central case method we follow has in ready view the many instances of non-central cases, some types of which are adverted to at several points in the book. But the diagnosis of how and why legislatures go wrong often depends on jurisdiction-specific details that would be at one remove from the general analysis in the book. Primary fault might lie, in any given country, with an unregulated system of campaign finance; a culture of tolerating bribes and corruption; gerry-mandering; or a system of proportioning seats that tends to produce unstable and incoherent coalitions. On the second point, we agree that the executive is a topic of vital importance. It is touched upon in passing as the proponent of much primary legislation in Westminster systems, very briefly as the maker of secondary legislation (on which the more general argument in Legislated Rights is wholly apposite), but not as the target of human rights complaints, where judicial review is required and where judicial review will be much assisted by positive law directing the resolution of such claims.
The Honourable Chief Justice Glenn Joyal, who holds office as Chief Justice of the Court of Queen’s Bench in the province of Manitoba, Canada, asks this question: ‘Should the protection, promotion and interpretation of human rights be shaped solely or principally by even the most well-respected judiciaries?’ He says that though ‘the book provides no clear vision in respect to any model of co-ordinate interpretation … some might say [it] is a natural corollary of the book’s thesis’. He is right to note that Legislated Rights does not pursue the question of competing interpretations of human rights between court and legislature, though it does offer an argument to answer Chief Justice Joyal’s question in the negative. The protection, promotion, and interpretation of human rights are, at the very least, not to be shaped solely by the judiciary and, in the central case of the legislature, are not to be shaped principally by the judiciary either. Early in Legislated Rights, we offer one example that, we think, helps to show why. The legislative specification that a ‘person who aids, abets, counsels or procures the suicide of another, or an attempt by another to commit suicide’ shall be criminally liable is not, on the argument defended in Legislated Rights, best understood to have intended to infringe a person’s right to life. Such a claim about the right to life posits that it includes the right to avoid a distressing and undignified end to life. We argue that the legislature, in prohibiting assisted suicide, is better understood to have reasoned about how to affirm and protect human life, with a view that the intentional taking of life is to be avoided, and to have considered, alongside compassion for the would-be suicide-seeker and his or her family, the rights of other persons who could be at increased risk of oppression and death. Such a legislative decision may be unreasonable and unjustified. We take no position on that ultimate question. We do argue, however, that ‘an honest demonstration of its failings is not best approached by postulating that [the legislature] ignored the rights of persons or set out to infringe them’ (20). Instead, the legislature set out to specify the requirements of human rights. Thus understood, it cannot be said that the judiciary is the only protector, promoter, and interpreter of human rights.
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Among their many contributions to public life, it is their time on the bench that unites our distinguished commentators. For their patient and generous engagement with Legislated Rights, we thank them.
Grégoire Webber holds the Canada Research Chair in Public Law and Philosophy of Law at Queen’s University and is visiting fellow at the London School of Economics and Political Science. Paul Yowell is a fellow of Oriel College and associate professor in the faculty of law.