The Negotiable Constitution: On The Limitation of Rights. Cambridge University Press, 2009 (Charles-Maxime Panaccio)

In The Negotiable Constitution: On the Limitation of Rights, Grégoire C. N. Webber's discussion of the limitation of rights comes with a more general theory of the constitution, including prescriptions as to the appropriate division of labor between legislatures and courts in constitutional democracies. It is, thus, a book of impressive breadth; however, the present critical review will focus only on Webber's theory of constitutional rights. It will be suggested that, although it is often pointing in a fruitful direction, the theory is essentially developed by way of contrast with a straw man, namely, the so-called “received approach to constitutional rights,” whose main features are its two-stage methodology and use of proportionality/balancing. Therefore, when the targeted views are read more realistically or generously, there ends up being very little difference between them and Webber's alternative views. It is suggested, further, that these alternative views harbor certain theoretical confusions, notably, when it comes to the issue of rights’ moral “specialness.” Webber's target is what he calls the “received approach” to constitutional rights, which is depicted as the purportedly dominant approach, around which a consensus has emerged, that is shared “almost without exception” by courts and scholars across jurisdictions. The main distinctive features of the received approach are (a) a two-stage methodology for rights decision making and (b) the use of a “proportionality-balancing method” at the second stage of that methodology. Hence, first, it is determined whether a right has been infringed, limited, or violated (the language fluctuates); if that is the case, then it is determined whether the infringement is justified by applying proportionality/balancing (pp. 2, 6, 56, 85, 88). While these are the fundamental features of the approach, here is a list of other important ideas, according to Webber, that are associated with it: (1) The first and second stages of the two-stage analysis correspond, respectively, to the perspective of the individual and that of the community, which are assumed to be competing (pp. 5, 66, 70, 85, 88). (2) A right's definition is to be distinguished sharply from its limitation. (3) Constitutional rights encompass limitless instances of the activity protected by the right, however mundane the activity. Hence, legislatures are constantly infringing or violating constitutional rights (pp. 65, 67–68). (4) Rights focus exclusively on individual interests; concerns unrelated to the right are excluded from the determination of the right's scope (pp. 2–3, 66, 88). (5) Limits to rights are conceived as exceptions that restrict their otherwise limitless applications. Thus, limitations clauses are often described as “savings clauses,” last-ditch defenses, and as causes for regret (pp. 3–4, 57). (6) Rights are seen as prima facie defeasible reasons, as opposed to absolute, exclusionary or hard to defeat ones (pp. 67, 69, 85). (7) Legislation may be valid, despite violating a constitutional right, so long as it satisfies the principle of proportionality (p. 4). (8) Rights-related interests or values can be weighed on the same scale as community- related interests or values. Webber argues that the received approach fails to achieve a proper understanding of rights and their limitations. Most notably, this failure allows a prematurely defined right to trade on the higher prestige of properly defined rights, with the consequence that genuine rights are put on the same level as exaggerated and unjustifiable rights claims. Webber warns that the dangers flowing from this should not be underestimated: to put pseudorights on the same level as true rights may obfuscate the merits and moral worth of rights in general and, eventually, lead to the devaluation of rights’ moral currency. Indeed, under the received approach, rights are relegated to the status of defeasible reasons and cease to hold special moral status. This confusion around rights, therefore, will impoverish political and moral discourse and even threaten the disappearance of the concept of rights (pp. 5, 115, 121–123, 139). It would also seem that those who peddle the received approach hold more nefarious motives. Hence, Webber argues, all that talk of balancing and proportionality, which claims an accuracy for balancing and proportionality that does not obtain, may help camouflage what actually happens in rights reasoning (pp. 6, 10, 89). By transforming intrinsically moral-political debates about the scope and content of rights into technical claims of weight and balance, the received approach is engaged, presumably, in an attempt to depoliticize and, as it were, to demoralize constitutional rights (pp. 96, 99–100, 104). Thus, through the proportionality-balancing process, which, Webber claims, evaluates the correctness, goodness, or rightness of state action in a mere mathematical or technical sense, political morality is evacuated from the analysis (pp. 90, 94). Although Webber is aware that some whom he associates with the received approach (Robert Alexy and Mattias Kumm, most notably)1 acknowledge that the limitation of rights constitutes an exercise in general practical reasoning that needs to appeal to political morality (pp. 83–84, 100), he retorts that as soon as this becomes the role of constitutional rights reasoning, rights lose their conclusive, absolute, preemptive, exclusionary aspects and, thus, become deconstitutionalized (pp. 100–101). The disease has been diagnosed: it is the received approach. We have been warned of the consequences: conceptual confusion and moral loss. What is Dr. Webber's prescribed treatment? Abandon the received approach, of course, and replace it with one that enables a more explicit struggle with the moral reasoning inherent in rights determination and that better coheres with a commitment to rights’ “specialness” (pp. 115–116, 118, 123, 126–127). Webber's alternative approach thus conceives of the limitations to rights not as limits, infringements, or violations but as specifications of the content and scope of rights. Rights have to be conceived of as conclusions to an exercise in practical reasoning that takes into account not only the interest, value, or principle grounding the right but also a plethora of other moral considerations. As a consequence, infringements of rights cannot be ascertained until the boundary of the right has been specified. And once a right has been delimited by taking into account all of the relevant moral reasons, it cannot be subject to further evaluations of proportionality. Therefore, according to this conception, no right is absolute in the sense of being unlimited in scope; however, all rights are absolute in the sense of being unconditionally obligatory within their proper scope (pp. 6, 10, 116–117). In many respects, Webber's views are quite acceptable. First, the notion that rights are conclusions to practical reasoning, although not uncontroversial, is a sound one. At the very least, some legal and some moral rights are conclusions to practical reasoning. Rights recognized or created through judicial decisions, for instance, very often are conclusions to practical reasoning. And in moral theory, even within the deontological tradition, which resists the idea of rights being exclusively conclusions to practical reasoning, there remains space for rights as conclusions. So, there seem to be very few people who actually deny that rights can be conclusions to practical reasoning; thus, the issue becomes whether they ought to be conceived exclusively as such conclusions. Second, it is also quite sound of Webber to suggest that moral and/or constitutional rights do not necessarily have to be conceived of in opposition to other moral principles or values. They could be said, instead, to be an expression of what those moral values entail in terms of duties for others from the point of view of individuals. However, such a view implies a moral structure very different from that of deontological or rights-based theories. Third, Webber is correct, no doubt, to suggest that the “all things considered” determination of limits to constitutional rights involves a normative exercise in morality or substantive practical reason (the terms do not make any difference, for our purposes), as opposed to a mere mathematical or technical exercise.2 These preliminary remarks lead to an examination of certain problems with Webber's views, however. First, the idea that rights have to be conceived of as conclusions to practical reasoning seems to imply that rights must be understood either as premises (as in the received approach) or as conclusions (as in Webber's approach) to practical reasoning. However, there are no reasons to impose such a choice or, at least, none are provided. Rights could be both premises and conclusions, as long as one is clear about the context in which one speaks of them. And I doubt, seriously, that variable uses of the same word (“right”) leads to confused communication or moral decay. Also, the requirement that all references to rights fit the same mould leads Webber to criticize certain notions without putting them in their proper context. Hence, the infringement-violation3 distinction is rejected in favor of a violation–no violation division (p. 119). However, as alluded to previously, the infringement-violation distinction is defended, typically, by moral deontologists, who conceive of rights as related to the protection of fundamental aspects of moral personhood and who, therefore, want these aspects recognized even in their justified breach. These deontological views imply a complete theory of moral rights and morality and to dismiss the infringement-violation distinction without taking this into account seems too quick. It is, thus, a little startling, then, to see Webber invoke well-known deontologically inclined philosophers such as Ronald Dworkin, Robert Nozick, Jürgen Habermas, and Jeremy Waldron in support of the moral specialness of rights (p. 117), since once rights are defined exclusively as conclusions then the nature of their specialness is fundamentally different from that of deontologically based rights. In fact, to focus on the conclusory nature of rights could be said to highlight the specialness of moral conclusions rather than that of rights, since the weight of rights is not opposed and resistant to any other moral considerations (like, say, social utility). So a conclusory right certainly is not special or morally basic in any deontological sense put forward, say, by the likes of Dworkin, Nozick, F. M. Kamm, or J. J. Thomson. In other words, Webber's notion of rights’ specialness has nothing to do with that of the authors he invokes. In fact, one may even question whether a conclusory right is, in any way, morally special other than by virtue of the fact that it is an individualized moral conclusion. Even worse, it seems as if such a right, actually, will be absolute only under some particular description and, thus, not at all absolute. On the other hand, although they both display a two-stage reasoning structure, the “received approach” to constitutional rights is certainly not to be put on the same plane as deontological theories of rights. It would be a grave mistake to assimilate that approach's infringement-justification bifurcation to the deontological distinction between infringement and violation. Fortunately, Webber does not do that. But, if it is accepted that there is no need to pigeonhole references to rights as either the premises of or conclusions to practical reasoning, then it could be accepted that in constitutional law the word “right” can be used in reference to both without creating confusion or moral decay. In fact, it could well be the case that having a two-stage method dividing the rights-provision issue from the justification issue has important heuristic and methodological advantages. In addition to these suggested theoretical problems, the book tends to exhibit a certain intellectual stinginess, notably, in its tendency to set up arguments against straw men. For instance, Webber affirms that limitations clauses have been “understudied” (p. 6) and that academic discussions of the case law in that area have tended “to focus on synopsis and summary not criticism or challenge” (p. 58). However, these affirmations can easily be refuted by looking at the Canadian situation, with which Webber and I are most familiar. In Canada, it can hardly be said that the rights-limitation issue has been understudied. On the contrary, it has been studied a lot.4 Have those studies tended to focus only on synopsis and summary and not criticism or challenge? Here, again, the evidence suggests otherwise. As a matter of fact, several decently argued scholarly texts have criticized the seminal case on rights limitations (Oakes)5 and often along lines that are very similar to Webber's criticisms of the received approach.6 Although these articles are less theoretically sophisticated than the book (and, in many ways, Webber has clarified and furthered these early criticisms and challenges), their existence hardly can be denied. Furthermore, the very existence of the received approach or, at the very least, its existence as described by Webber, can be put into question. Recall that he describes it as an almost unchallenged consensus view shared by courts and academics the world over. To be fair, he qualifies that general statement by saying that he engages, at times, in intellectual “re-construction” so as to present a model; that courts and scholars are by no means unanimous, in all respects; and that his account of the received approach has not exhausted “the different, possible modalities of the two-stage bills of rights’ analysis” (pp. 57–58, 85). However, even accepting that some intellectual reconstruction may be in order, should not the views expressed by those associated with the received approach still be put in their most favorable light before being nailed to the wall? Let us take a closer look at whether the propositions of the received approach can truly be described as, in fact, dominating thinking about constitutional rights. It is true that most charters of rights include both rights provisions and limitations clauses. This has tended to lead to two-stage judicial methodologies, which are, in turn, discussed, analyzed, and either criticized or lionized by scholars. It is also fair to say that, at times, some judges and scholars have become transfixed by structure, assimilating infringements of the legal conditions—associated with constitutional rights provisions—with infringements (even violations) of quasi-absolute moral rights and conceiving of limitations clauses as providing for exceptional justification. Clearly, in Canada, some statements made by Chief Justice Brian Dickson in Oakes are suggestive of such a view (p. 134). Professor Lorraine Weinreb may have held such a view as well, at some point.7 But Oakes was decided in 1986; ten months later, these statements were toned down by the same Chief Justice Dickson in Edwards Books.8 And in several other cases, the Supreme Court has made clear that section 1 was not to be conceived of as a savings or exception In if these aspects of the received approach in Canada, they under academic and soon it remains that judges and scholars do conceive of infringements as prima defeasible conclusions, as opposed to absolute, exclusionary However, as will be suggested this view is and within the context in which it was on a more do the of and scholars conceive of constitutional rights as providing limitless protection for the general activity described in rights provisions concerns unrelated to individual interests or to the right Here, the is more Webber by that the received approach the content of rights in to the of the rights and that, in fact, it a definition of rights that is but the rights (p. To he uses the of the protection to of by section of the Canadian that section any activity that to But that is not quite In fact, an activity that to through is excluded at once from the protection of section in the Webber his by saying that the received approach rights as all reasons the reasons grounding the right (p. But again, this is by the judicial of section of the Canadian The tendency to intellectual and target straw becomes most when and are to the received approach. Hence, Webber affirms that is no that the of on the status of rights conceived as that would be by the statement that by prematurely to rights one is in fact a and that, therefore, to as complete an understanding of what rights which to more than a of to from in the very practical reasoning that must be in for the right to In a similar Webber argues that the received approach to depoliticize rights by to the moral and political evaluations in a right into technical of weight and (pp. This some of constitutional rights are these people who language for such nefarious for to such from the of any or So, I that the received approach is more an described by Webber does not actually if one takes a more view of what does is a general tendency for when with constitutional rights, to a doubt, some do make too of it into a when it is a mere heuristic for practical reasoning. However, of for the right and that these statements some could them as to be Indeed, at many Webber comes to the of a more conceived of the received approach. For almost in the same that he the received approach for conceiving of proportionality as morality he that some of proportionality are of the view that any attempt to morality is (pp. Even more is Webber's of the need to to some of balancing when in practical reasoning (p. Hence, he that it not that or values are that or do or reasons in to a then suggests that it is to balancing reasons, on the one hand, and balancing interests or on the to or in in the of practical reasoning are thus described as which do not make “the same to balancing and as does the received In practical reasoning, “to or reasons may an examination of the and of but this is not to a scale of to a value, and to in the technical one the reason (pp. the distinction fails to that those who of balancing and proportionality conceive of the technical seems to be no reason in support of such a of views. Indeed, such a view seems so as to as to its some truly to further some of at constitutional rights reasoning of moral not it be closer to as well as more to those who are associated with the received approach, to conceive of proportionality/balancing as taking its in a practical reasoning is not proportionality/balancing understood as a method of practical reasoning that uses such heuristic as prima facie that the language of proportionality, when used in a practical reasoning can easily the can be described as without moral or And Webber even that the idea of is to practical reasoning and that reasons are if on their (p. constitutional rights reasoning, he At the all one has are defeasible doubt, those reasons may be more than one may have some way in the grounding or of a right But even in this case, the conceived right only an but not all considerations relevant to the scope and content of the These conclusions are by virtue of some of the relevant fundamental practical but are reasons those that a right may to the This is a description of what is actually Webber does not that he is at this of the language of rights, with all its of and moral (p. As I less about the general moral and either of the word “right” in different or of has been a violation of the normative associated with a constitutional the right to by the “the right to has been In fact, I would be inclined to that the of such are and that they are by the methodological and heuristic by a course, proportionality is morally moral theory must However, it does not seem to that judges become moral philosophers and to become in debates say, and This is not to say that they should not in moral Indeed, when they through the proportionality-balancing process, they put moral even they may not be expressed in So can conceive of constitutional rights and their as Webber the normative by constitutional rights provisions can only be said to prima and violations of rights. But prima or propositions are in no way to moral and legal in fact, they are very for those of course, as Webber one should be not to prima and violations (p. should one or a heuristic such as said, in of practical reasoning, competing could to a other than by Indeed, until the Court of has these limitations or exceptions to rights as if they were the of rather than the of an attempt to the same ends by other Thus, it constantly and speaks of violations and even of of rights at the very of this stage in the when in it is only with an as a consequence, the second stage is by the of a that is different from that of the first, a which more to a context of the Supreme Court has tended to conceive of section 1 as a of which has lead to the of The of Oakes has been by this it is to conceive of 1 as a and technical nothing more than a for the state to into the of fundamental rights. a practical may 1 in this but in the of our constitutional law it an one of and First, there is no way to the protection of rights that the of a political morality that proportionality analysis as an important of rights And rights analysis has a more structure than the focus on proportionality

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