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Bill of rights

About: Bill of rights is a research topic. Over the lifetime, 3294 publications have been published within this topic receiving 25873 citations.


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11 Mar 1999
TL;DR: Waldron as discussed by the authors argues that a belief in rights is not the same as a commitment to a Bill of Rights, and he argues for an alternative approach to the problem of disagreement: when disagreements about rights arise, the respectful way to resolve them is by decision-making among the right-holders on a basis that reflects an equal respect for them as the holders of views about rights.
Abstract: When people disagree about justice and about individual rights, how should political decisions be made among them? How should they decide about issues like tax policy, welfare provision, criminal procedure, discrimination law, hate speech, pornography, political dissent and the limits of religious toleration? The most familiar answer is that these decisions should be made democratically, by majority voting among the people or their representatives. Often, however, this answer is qualified by adding ' providing that the majority decision does not violate individual rights.' In this book Jeremy Waldron has revisited and thoroughly revised thirteen of his most recent essays. He argues that the familiar answer is correct, but that the qualification about individual rights is incoherent. If rights are the very things we disagree about, then we are quarrelling precisely about what that qualification should amount to. At best, what it means is that disagreements about rights should be resolved by some other procedure, for example, by majority voting, not among the people or their representatives, but among judges in a court. This proposal - although initially attractive - seems much less agreeable when we consider that the judges too disagree about rights, and they disagree about them along exactly the same lines as the citizens. This book offers a comprehensive critique of the idea of the judicial review of legislation. The author argues that a belief in rights is not the same as a commitment to a Bill of Rights. He shows the flaws and difficulties in many common defences of the 'democratic' character of judicial review. And he argues for an alternative approach to the problem of disagreement: when disagreements about rights arise, the respectful way to resolve them is by decision-making among the right-holders on a basis that reflects an equal respect for them as the holders of views about rights. This respect for ordinary right-holders, he argues, has been sadly lacking in the theories of justice, rights, and constitutionalism put forward in recent years by philosophers such as John Rawls and Donald Dworkin. But the book is not only about judicial review. The first tranche of essays is devoted to a theory of legislation, a theory which highlights the size, the scale and the diversity of modern legislative assemblies. Although legislation is often denigrated as a source of law, Waldron seeks to restore its tattered dignity. He deprecates the tendency to disparage legislatures and argues that such disparagement is often a way of bolstering the legitimacy of the courts, as if we had to transform our parliaments into something like the American Congress to justify importing American-style judicial reviews. Law and Disagreement redresses the balances in modern jurisprudence. It presents legislation by a representative assembly as a form of law making which is especially apt for a society whose members disagree with one another about fundamental issues of principle, for it is a form of law making that does not attempt to conceal the fact that our decisions are made and claim their authority in the midst of, not in spite of, our political and moral disagreements. This timely rights-based defence of majoritarian legislation will be welcomed by scholars of legal and political philosophy throughout the world.

783 citations

Journal ArticleDOI
TL;DR: The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective as discussed by the authors argues that judicial attention and approval for individual rights grows out of "deliberate, strategic organizing by rights advocates" (p. 2).
Abstract: Charles R. Epp, The Rights Revolution: Lawyers, Activists, and Supreme Courts in Comparative Perspective. Chicago: University of Chicago Press, 1998. Pp. xv + 326 pages. $17.00 paper. The American judiciary has dramatically increased its protection for individual rights since the 1950s, when the United States Supreme Court began deciding and supporting a host of new constitutional claims, including freedom of speech and the press; rights against discrimination on the basis of race and sex; privacy rights; and due process rights in criminal and administrative proceedings. Critics and defenders of this dramatic increase in judicially proclaimed individual rights often attribute this transformation in the law to activist judges. In The Rights Revolution, Charles Epp challenges the view that activist judges are primarily responsible for the expansion of judicially protected individual rights in the United States. He also rejects theories that our rights revolution is attributable to the existence of a constitutional bill of rights or to a culture of rights consciousness. Although Epp concedes that all of these factors may contribute to rights revolutions, he asserts that organizations, lawyers, and money are indispensable ingredients. He argues that judicial attention and approval for individual rights grows out of "deliberate, strategic organizing by rights advocates" (p. 2). Strategic rights advocacy succeeds, he says, only when there is a "support structure" for legal mobilization consisting of organizations dedicated to establishing rights, committed and able lawyers, and sources of financing. Epp also ties his argument about the causes of the rights revolution to debates about whether judicially protected rights illegitimately interfere with democratic processes. Epp asserts that the strong support structure for individual rights claims in the United States reflected widespread support (p. 5) for individual rights. Therefore, he concludes, the process that produced the expansion of judicially protected individual rights is not undemocratic. Epp probably is correct that the support structure for rights advocacy was integral to the rights revolution in the United States and that it is essential for mobilizing legal rights in other liberal democracies as well. He makes an important contribution by challenging the conventional emphasis on judicial leadership and by explaining in detail how each element of the support structure-organized groups, willing and competent legal counsel, and financial resources-significantly contributed to strategic rights advocacy. He also introduces a helpful comparative element to the analysis of legal mobilization. His case studies of India, England, and Canada strongly suggest that other favorable conditions-an activist judiciary, a strong bill of rights, and a culture that frames disputes in terms of rights-may not be sufficient to generate a rights revolution in the absence of a strong support structure for rights advocacy. However, several weaknesses detract from the significant achievements of this book. Although Epp marshals substantial evidence suggesting that support structures are crucial for legal mobilization, his definition of legal mobilization excludes a large realm of rights activism that occurs outside the Supreme Court and, indeed, outside the courts altogether. Moreover, he relies primarily on one measure of legal mobilization to reduce and quantify his claim about the relationship between support structures and legal mobilization in the courts. Epp, in trying to isolate support structures from other favorable conditions to prove his thesis, underestimates how these factors are likely to influence one another. Finally, he does not adequately support his intriguing claim that the rights revolution in the United States was not undemocratic because it grew out of a broad-based support structure. Despite these limitations, Epp's book is significant, not only for what it accomplishes directly but also for the new research it is likely to spawn. …

349 citations

Journal ArticleDOI
TL;DR: In this paper, the authors demonstrate the irony that the absence of the values of ubuntu in society that people often lament about and attribute to the existence of the Constitution with its demands for respect for human rights when crime becomes rife, are the very same values that the Constitution in general and the Bill of Rights in particular aim to inculcate in our society.
Abstract: The new constitutional dispensation, like the idea of freedom in South Africa, is also not free of scepticism. Many a time when crime and criminal activity are rife, sceptics would lament the absence of ubuntu in society and attribute this absence to what they view as the permissiveness which is said to have been brought about by the Constitution with its entrenched Bill of Rights. Firstly, I would like to take this opportunity and (attempt to) demonstrate the irony that the absence of the values of ubuntu in society that people often lament about and attribute to the existence of the Constitution with its demands for respect for human rights when crime becomes rife, are the very same values that the Constitution in general and the Bill of Rights in particular aim to inculcate in our society. Secondly, against the background of the call for an African renaissance that has now become topical globally, I would like to demonstrate the potential that traditional African values of ubuntu have for influencing the development of a new South African law and jurisprudence. The concept ubuntu, like many African concepts, is not easily definable. In an attempt to define it, the concept has generally been described as a world-view of African societies and a determining factor in the formation of perceptions which influence social conduct. It has also been described as a philosophy of life. Much as South Africa is a multicultural society, indigenous law has not featured in the mainstream of South African jurisprudence. Without a doubt, some aspects or values of ubuntu are universally inherent to South Africa’s multi cultures. The values of ubuntu are therefore an integral part of that value system which had been established by the Interim Constitution. The founding values of the democracy established by this new Constitution arguably coincide with some key values of ubuntu(ism). Ubuntu(-ism), which is central to age-old African custom and tradition however, abounds with values and ideas which have the potential of shaping not only current indigenous law institutions, but South African jurisprudence as a whole. Ubuntu can therefore become central to a new South African jurisprudence and to the revival of sustainable African values as part of the broader process of the African renaissance.

292 citations

Journal ArticleDOI
TL;DR: According to the Southern African Migration Project (SAMP), South Africans are extremely intolerant of non-citizens, refugees and migrants as discussed by the authors, and there is little support for the idea of migrant rights.
Abstract: South Africa prides itself on having one of the most progressive constitutions in the world. The Bill of Rights guarantees a host of basic political, cultural and socio-economic rights to all who are resident in the country. Yet there have been persistent reports that citizen intolerance of non-citizens, refugees and migrants has escalated dramatically since 1994. This article documents this process through presentation of results of national public opinion surveyed by the Southern African Migration Project (SAMP). The surveys show that intolerance is extremely pervasive and growing in intensity and seriousness. Abuse of migrants and refugees has intensified and there is little support for the idea of migrant rights. Only one group of South Africans, a small minority with regular personal contact with non-citizens, is significantly more tolerant. These findings do not augur well for migrant and refugee rights in this newly democratic country, or early acceptance of the UN Convention on the protection of migrant workers.

244 citations

Journal Article
TL;DR: In this article, a moral theory grounded on Southern African world views is proposed, which suggests a promising new conception of human dignity, according to which typical human beings have a dignity by virtue of their capacity for community, understood as the combination of identifying with others and exhibiting solidarity with them.
Abstract: There are three major reasons why ideas associated with ubuntu are often deemed to be an inappropriate basis for a public morality in today's South Africa. One is that they are too vague; a second is that they fail to acknowledge the value of individual freedom; and a third is that they fit traditional, small-scale culture more than a modern, industrial society. In this article, I provide a philosophical interpretation of ubuntu that is not vulnerable to these three objections. Specifically, I construct a moral theory grounded on Southern African world views, one that suggests a promising new conception of human dignity. According to this conception, typical human beings have a dignity by virtue of their capacity for community, understood as the combination of identifying with others and exhibiting solidarity with them, where human rights violations are egregious degradations of this capacity. I argue that this account of human rights violations straightforwardly entails and explains many different elements of South Africa's Bill of Rights and naturally suggests certain ways of resolving contemporary moral dilemmas in South Africa and elsewhere relating to land reform, political power and deadly force. If I am correct that this jurisprudential interpretation of ubuntu both accounts for a wide array of intuitive human rights and provides guidance to resolve present-day disputes about justice, then the three worries about vagueness, collectivism and anachronism should not stop one from thinking that something fairly called 'ubuntu' can ground a public morality.

236 citations


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No. of papers in the topic in previous years
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202312
202239
202123
202062
201952
201857