1.. HARD CASES 5. Legal Rights A. Legislation . . . We might therefore do well to consider how a philosophical judge might develop, in appropriate cases, theories of what legislative purpose and legal principles require. We shall find that he would construct these theories in the same manner as a philosophical referee would construct the character of a game. I have invented, for this purpose, a lawyer of superhuman skill, learning, patience and acumen, whom I shall call Hercules. I suppose that Hercules is a judge in some representative American jurisdiction. I assume that he accepts the main uncontroversial constitutive and regulative rules of the law in his jurisdiction. He accepts, that is, that statutes have the general power to create and extinguish legal rights, and that judges have the general duty to follow earlier decisions of their court or higher courts whose rationale, as l

Taking Rights Seriously

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of proportionality, trace its global diffusion, and evaluate its impact on law and politics in a variety of settings, both national and supranational. In the conclusion, we discuss our major finding, namely, that proportionality constitutes a doctrinal underpinning for the expansion of judicial power globally. Although there is significant variation in how it is used, judges who adopt proportionality position themselves to exercise dominance over policymaking and constitutional development.

https://papers.ssrn.com/sol3/Delivery.cfm/SSRN_ID1569344_code718088.pdf?abstractid=1569344

Proportionality Balancing and Global Constitutionalism

1. Introduction 2. Country studies 3. Comprehensive lists of country scores 4. List of expert consultants.

The Handbook of National Legislatures: A Global Survey

This article presents a way of thinking about citizenship which incorporates theoretical elements of historical institutionalism and political economy. These provide the tools for identifying patterns of change in visions of the proper form of the triangular relationship among the state, the market and communities. These discourses, as well as the practices which result from it, are labelled the citizenship regime. The history of this concept is analyzed to account for some of the difficulties of contemporary Canada. There is now a double challenge. Increasingly, Quebec and the rest of Canada promote a different balance of responsibility among the state, market and communities. As well, neo-liberal efforts to reduce deficits and redesign government are challenging received ideas of solidarity. The result is that the pan-Canadian and Quebec's citizenship regimes are diverging.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0008423900016450

Fated to Live in Interesting Times: Canada's Changing Citizenship Regimes*

While equality laws operate to enable access to information, these laws have limited power over the overriding impact of market forces and copyright laws that focus on restricting access to information. Technology now creates opportunities for everyone in the world, regardless of their abilities or disabilities, to be able to access the written word - yet the print disabled are denied reading equality, and have their access to information limited by laws protecting the mainstream use and consumption of information. The Convention on the Rights of Persons with Disabilities and the World Intellectual Property Organization's Marrakesh Treaty have swept in a new legal paradigm. This book contributes to disability rights scholarship, and builds on ideas of digital equality and rights to access in its analysis of domestic disability anti-discrimination, civil rights, human rights, constitutional rights, copyright and other equality measures that promote and hinder reading equality.

Discrimination, Copyright and Equality: Opening The E-Book for the Print Disabled

This paper examines the emergence of a new model for protecting rights (referred to as the ‘parliamentary rights’ model) in Canada, New Zealand, the United Kingdom, and the Australian Capital Territory. This parliamentary model is distinguished from the more traditional, judicial-centric, approach to rights protection in at least two ways. The first is that this parliamentary rights model incorporates the notion of legitimate political dissent from judicial interpretations of rights. The second way it challenges the court-centred model is by incorporating the systematic evaluation of proposed legislation from a rights perspective. Both of these features allow for the possibility of a broader range of perspectives on the appropriate interpretation of rights or the resolution of disagreements involving claims of rights than those arising from more judicial-centric bills of rights. The paper assesses whether this alternative approach to rights protection satisfies those sceptics who doubt the virtue or prudence of conceiving of political disputes as legal rights claims for which the judiciary has the dominant role in their interpretation and resolution.

Parliamentary Bills of Rights: An Alternative Model?

Although the Canadian Charter of Rights and Freedoms is twenty years old, little is known about how it affects those who wield power, what influence it has on legislative decisions, or to what extent the government believes it should be constrained by Charter concerns. For most laws Parliament has the final word on how social policy is balanced against protected rights. Thus the extent to which legislation is sensitive towards rights depends on how those who develop, propose, and assess policy view the Charter. How influential are governmental legal advisors? How risk averse or risk tolerant are government ministers when pursuing legislative goals that may result in Charter challenges? How capable is Parliament in requiring government to justify and explain legislative choices that may impair rights? In Charter Conflicts Janet Hiebert examines these questions while analyzing the Charter's influence on controversial legislative decisions such as social benefits for lesbians and gay men, the regulation of tobacco advertising, the rules of evidence for sexual assault trials, the use of DNA for law enforcement purposes, and the rules for police searches of private residences. She questions the broadly held assumption that only courts are capable of respecting rights, arguing that Parliament shares responsibility with the judiciary for resolving Charter conflicts. She views the Charter's significance less in terms of the judiciary overruling Parliament than in the incentives and pressures it provides for public and political officials to satisfy themselves that legislation is consistent with protected rights.

Charter Conflicts: What Is Parliament's Role?

The United Kingdom has overcome its historic antipathy to a domestic bill of rights. Its recently adopted Human Rights Act (HRA) is distinctly different from the world’s best-known rights instrument, the United States Bill of Rights. Faced with inherent doubts about the desirability of abandoning the principle of parliamentary sovereignty in favor of judicial supremacy, and with mounting international and domestic pressures to articulate rights for the purposes of constraining state actions, the United Kingdom incorporated the European Convention on Human Rights into domestic law. But in so doing, it has developed an innovative approach to protecting rights. This model makes a key assumption—that rights will be protected not simply through after-the-fact evaluations by courts but by establishing opportunities and obligations for rights review by ministers, parliamentarians, and public authorities that are distinct from, and prior to, judicial review. The paper assesses the HRA’s early effects on political behavior and focuses on the work of the recently created Joint Committee on Human Rights, which plays a pivotal role in ensuring that the government explains and justifies proposed legislation in terms of its consistency with rights.

/pdf/parliament-and-the-human-rights-act-can-the-jchr-help-mo3lv2rft6.pdf

Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?

A handful of parliamentary systems have overcome their historic reluctance to adopt a bill of rights. Yet in changing governing principles to ensure that individual rights become more explicit norms in legislative decision making, they have contributed to the emergence of a new paradigm for rights protection, which I depict as a parliamentary rights model. The significance of this model is that it tries to resist two central precepts of the American regime: that only courts determine the merits of legislation where rights are implicated, and that constitutional principles are compromised if a legislature acts in a manner that challenges or alters the judicial definition of a constitutional right. This Article examines how this emerging paradigm conceives of institutional roles and responsibilities for judgments about rights, with a specific focus on the Canadian Charter of Rights and Freedoms (Charter)1 and the United Kingdom's Human Rights Act (HRA).2 The first Part of this Article argues that the new paradigm does not rely only on judicial review as a safeguard for protecting rights, as it also creates incentives and processes to facilitate political rights review. As a consequence, this new model has the potential to encourage critical reflection on the merits of legislation from a broader spectrum of institutional actors than is normally associated with a bill of rights. The second Part argues that despite the significantly different assumptions that inform the new paradigm, American ideas of constitutionalism remain sufficiently persuasive that many actors reject the legitimacy of political judgments about rights where they differ from judicial perspectives. I. The Emerging Parliamentary Model of Rights Protection A. Introduction Parliamentary systems based on the Westminster model and those political systems with American-style judicial review have generally been treated as rival political paradigms. Unlike the latter, where courts view their mandate as allowing judges to invalidate legislation when it is inconsistent with judicial interpretations of constitutional rights, in the former, the most important right is that of collective self-government. The constitutional principle of parliamentary sovereignty is generally understood as preventing courts from declaring legislation invalid from a rights perspective when legislation is duly enacted and consistent with the rule of law. This does not mean that individual rights are not protected through interpretations of the common law. Indeed, some argue that the principle of parliamentary sovereignty itself protects rights,3 while others suggest that this principle need not, or should not, constrain judicial interpretation of rights.4 Still, the core principle that no judicial body can set aside the duly-enacted legislation of parliament stands in fundamental contrast to the emergence of judicial supremacy in the United States. Thus, the idea of codifying rights and empowering courts to interpret them creates serious tensions for parliamentary systems that emphasize the sovereignty of parliamentary judgment. Despite this historic rivalry between competing constitutional systems, after the Second World War, Westminster-based parliamentary systems incurred growing international and domestic pressures to articulate rights for the purposes of constraining state action. Faced with a fundamental conflict between competing constitutional principles, parliamentary systems explored the idea of how to give more prominence to rights without fully abandoning reliance on parliament's judgment. Inherent doubts about the compatibility (or desirability) of the American model encouraged experimenting, borrowing, and modifying new statutory and constitutional instruments that were being introduced in countries where similar constitutional traditions prevailed. The evolution and adaptation of these parliamentary practices represents an important contribution to constitutional thought. …

New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?

This article contests the widely held view that an effective bill of rights requires judicial interpretation of rights to prevail over political judgement. Most bills of rights reflect classical liberal assumptions that premise freedom and liberty on the absence of state intervention. Yet they govern modern welfare states that presume and require substantial state involvement, seen to various degrees as facilitating rather than restricting the conditions for robust and equal citizenship. Judges cannot provide answers that are so definitive or persuasive to questions about whether social policy is reasonable in terms of human rights that they rule out other reasonable judgements. Although these concerns are often used to justify rejecting a bill of rights, this article takes a different position. It argues that a political community can benefit from exposure to judicial opinions on whether legislation is consistent with rights, but should also encourage and expect parliament to engage in legislative rights review. The article discusses how three parliamentary systems have attempted to infuse more concern for rights in their processes of decision making, and concludes with suggestions on how legislative rights review can be strengthened.

https://www.jstor.org/stable/pdfplus/4092350.pdf

Janet L. Hiebert

Papers

Parliamentary Bills of Rights: An Alternative Model?

Charter Conflicts: What Is Parliament's Role?

Parliament and the Human Rights Act: Can the JCHR help facilitate a culture of rights?

New Constitutional Ideas: Can New Parliamentary Models Resist Judicial Dominance When Interpreting Rights?

Interpreting a Bill of Rights: The Importance of Legislative Rights Review