Critically assess Jeremy Waldron’s ‘rights-based critique of constitutional rights’.
‘Standardly, a modern constitution is a set of norms that gives structure to a body politic and regulates the way it should be run, and which is not amended and repealed as easily as ordinary law’(Fabre, 2000). Despite the fact that many states enshrine rights in their constitution, and the move towards legal protection of universal human rights, Jeremy Waldron (1993) offers a criticism of this, arguing that by constitutionalising rights, people’s rights are being violated. He focuses particularly on how constitutionalising rights is in fact undemocratic. He offers four main arguments in support of this thesis: that the inferring of rights is not automatic, …show more content…
26). He claims that in the conversion, the moral substance of the rights are lost by the focus being transferred to interpretation. The focus is transferred to ensuring the language used is not so broad and unspecific that it could be used in ways which are morally questionable (for example, the claim that racial abuse is protected under the right of free speech (Waldron, 1993, p. 26)). Waldron also claims that constitutionalising rights suggests a lack of trust in the populous, as it assumes that without such safeguards, they would behave in a morally unjust manner. He derives that this assumption in itself is problematic, as the premise of rights is that individuals are autonomous and have the capacity to make moral decisions (1993, p. 27). If there is a need to constitutionalise rights, it is suggesting a lack of capacity for individuals to automatically make moral decisions, hence, the individuals are lacking the foundation upon which rights claims are built. There are two main problems with this argument. Firstly, although in the formation of the constitution, there may be a focus on language and interpretation, this is a necessary stage in ensuring that individuals rights are fully protected, and that flaws in the wording of the constitution will not harm its legitimacy in the future. This effort to ensure the precise and …show more content…
27) argues that, as rights are neither simple nor uncontentious, we should not depoliticise them, as this prevents debate and argument. As Weale (1999, p. 182) agrees, it is possible to ‘conceive constitutional restrictions as ‘gagging’ clauses or ways of keeping certain contentious issues out of democratic politics’. However, it is unlikely that rights that are so contentious as to necessitate this removal from debate will be easily added to the constitution, given the political, legislative and judicial safeguards in place to prevent this. In this way, the democratic procedure itself, with the separation of powers, representation of citizens and open debate serves to prevent any controversial issues from being removed from the agenda, even under the guile of the protection of
‘Standardly, a modern constitution is a set of norms that gives structure to a body politic and regulates the way it should be run, and which is not amended and repealed as easily as ordinary law’(Fabre, 2000). Despite the fact that many states enshrine rights in their constitution, and the move towards legal protection of universal human rights, Jeremy Waldron (1993) offers a criticism of this, arguing that by constitutionalising rights, people’s rights are being violated. He focuses particularly on how constitutionalising rights is in fact undemocratic. He offers four main arguments in support of this thesis: that the inferring of rights is not automatic, …show more content…
26). He claims that in the conversion, the moral substance of the rights are lost by the focus being transferred to interpretation. The focus is transferred to ensuring the language used is not so broad and unspecific that it could be used in ways which are morally questionable (for example, the claim that racial abuse is protected under the right of free speech (Waldron, 1993, p. 26)). Waldron also claims that constitutionalising rights suggests a lack of trust in the populous, as it assumes that without such safeguards, they would behave in a morally unjust manner. He derives that this assumption in itself is problematic, as the premise of rights is that individuals are autonomous and have the capacity to make moral decisions (1993, p. 27). If there is a need to constitutionalise rights, it is suggesting a lack of capacity for individuals to automatically make moral decisions, hence, the individuals are lacking the foundation upon which rights claims are built. There are two main problems with this argument. Firstly, although in the formation of the constitution, there may be a focus on language and interpretation, this is a necessary stage in ensuring that individuals rights are fully protected, and that flaws in the wording of the constitution will not harm its legitimacy in the future. This effort to ensure the precise and …show more content…
27) argues that, as rights are neither simple nor uncontentious, we should not depoliticise them, as this prevents debate and argument. As Weale (1999, p. 182) agrees, it is possible to ‘conceive constitutional restrictions as ‘gagging’ clauses or ways of keeping certain contentious issues out of democratic politics’. However, it is unlikely that rights that are so contentious as to necessitate this removal from debate will be easily added to the constitution, given the political, legislative and judicial safeguards in place to prevent this. In this way, the democratic procedure itself, with the separation of powers, representation of citizens and open debate serves to prevent any controversial issues from being removed from the agenda, even under the guile of the protection of