J) Bills of Rights

In this section I wish to subject Bills of Rights to some examination. As I have attempted to make clear, the moral sceptic sees non-legal rights as dependent on contingent sentiments.

Where these sentiments are not virtually universal, and sometimes even where they are, what is important are legal rights.

Now justiciable Bills of Rights clearly are legal instruments. They have been promulgated by a legislature (or other such lawmaking or constitution-drafting body). They obviously, therefore, meet Hart’s test of legal validity.⁷⁰ They are not merely a catalogue of natural or moral rights. They set out and create legal rights. In doing that though, these instruments incorporate, expressly and to a lesser extent tacitly, moral standards. Judges are directed to refer to morality. Indeed judges must refer to morality because by their nature Bills of Rights are vague, amorphous instruments which set out only very general legal standards about the place of the individual in society. To apply such general standards in specific instances the judge is to be directed by a certain morality.

Consequently even though Bills of Rights be legal, they are also overwhelmingly moral. They incorporate moral precepts. They offer an emotionally attractive statement of entitlements in the

207 broadest possible terms. They enumerate, and make legal, a set of moral criteria. This explicit hybridity is enough for me to want to comment on such instruments further under this chapter’s rubric of non-legal rights.

In my opinion it is a fundamental feature of Bills of Rights — virtually without exception in the way they are drafted — that they profess to accept objective, real, mind-independent rights and then go on to give them legal force. That is, Bills of Rights mimic, in tone and language, the objective, absolute⁷¹ claims about rights (and thus about morality) which the moral sceptic rejects.

Their structure and text hides, or perhaps disguises, the fact (according to the Humean at least) that these standards have evolved only gradually and are still today neither universally agreed to nor absolute in application or status. Quite simply, Bills of Rights’ rights are presented as reified, objective, real things; they treat values, standards, rules and rights as objective and mind-independent when they are not. As a result, the political nature of legal rules and rights — their being a response to a partial conflict situation — becomes obscured by the sort of absolutist-sounding moral claims such instruments make for the particular rights they establish as legal. Similarly, the characteristic legislative processes of negotiation and compromise, which help defuse conflicts of interest in society, become ever more imperceptible with a Bill of Rights in place. No recognition, on the face of such documents, is given to any element of compromise and give-and-take as essential components of the political process that creates legal rights.

Nevertheless, this criticism is by no means fatal to the beneficial adoption of a Bill of Rights. The moral sceptic does not see such instruments as necessarily good or necessarily bad but looks to circumstances and likely consequences. These are manifold and varying; but one thing can be said with some certainty. A Bill of Rights shifts power from the legislature to the judiciary⁷² — the former becomes subservient to what the latter says is the instrument’s ‘true’ meaning. The judges are the ones who must declare whether all other laws accord with the Bill’s enunciated standards — standards which have been framed, inaccurately if I be correct, in the language and tone of the moral realist. The temptation for judges, put in this position of having to interpret such self-proclaimed higher values, is to treat them as real, objective, mind-independent values and largely to ignore the negotiation, compromise and evolution underlying rights.

This affords judges — the preponderance of whom appear to have a disturbingly narrow breadth of experiences and outlooks and near identical training⁷³ — considerable opportunity to recognise

those particular ‘objective’ values that they like. In this way a Bill of Rights hands enough power to judges, if they choose to exercise it, to allow them to seize much of the legislative process.

Bills of Rights, therefore, by setting out purportedly objective entitlements, however vaguely or amorphously, force judges to pronounce on a variety of essentially political and moral issues far removed from traditional common law interpretation: Are foetuses people and should women be able to have an abortion? Should those claiming to be refugees receive full legal representation, oral hearings and judicial access whatever the cost? What is the ‘absolute’ maximum time before an accused must be brought to trial? Should religious instruction be allowed in state funded schools? Is ‘justice’ denied by prohibiting questions about an alleged rape victim’s past sexual history? All these are social issues involving competing social claims yet under a Bill of Rights they are presented as claims to objective, mind-independent, real rights. (Worse, the highest court’s final determination of such issues is delivered as the ‘right’ one.) Such a presentation, in my opinion, invites the assumption of a Dworkinian approach to interpretation with judges having to claim Herculean or Dephic Oracle abilities.⁷⁴

To assert, though, that a Bill of Rights shifts power from the legislature to the judiciary does not tell us whether such a shift is desirable. For the moral sceptic that will depend on the circumstances. I have argued earlier, in section b) of chapter eight, that there are no general or institutional reasons for placing greater trust in judges to make fundamental moral decisions than in anyone else and that demanding that recourse be had to morality leads to less certain outcomes.

Yet in various specific situations there may exist solid consequentialist grounds for wishing difficult political and social policy decisions to be taken by judges — and so, implicitly, not by politicians. Perhaps the political system is such that politicians are not elected (in which case, assuming judges still had some freedom of action, their incentives for corruption and bias might well be less than that of politicians), or that elected politicians are stifled by an unstable electoral system (not unlike modem day Italy’s was) or by a too thorough diffusion and separation of powers (as in the United States), or there may even still be a colonial structure in place where judges represent a first taste of independence. There are various situations one can imagine in which it might be desirable, by means of a Bill of Rights, to let judges share in the making of public policy (say, for example, that blacks be bussed to white schools or that constituency boundaries be re-drawn), in effect to give them the last say on which groups in society are to win and which to lose. Such a concession, however, gives up no ground whatsoever to the moral realist. The decision whether to adopt a Bill of Rights, for the sceptic, is solely a function of likely consequences and sentiments. The relative priority of competing rights claims, their scope of possession, and whether any are more important or basic than others, remain highly disputed and not ‘objectively’ resolvable questions.

For my own part, I am generally disinclined, in the context of a Western-style democracy, to see constitutional rights become an aspect of almost all legal cases and controversies. Such a constitutionalisation of case-law, the effect of adopting a Bill of Rights because of the over-riding nature of such instruments, affords great scope to unelected judges, unfettered in their decision-making by anything save each one’s own conscience and limited, very amorphous institutional constraints. Judges end up with too much say over social policy.

Nor do I like the way this legalisation of politics channels the quest for political change into the courts where special interest groups each cling to their own favourite word or phrase whose absolute tone is particularly suited to their purposes. I like my politics more open and robust than that. Litigation is not usually the best way to resolve political conflict; it is often better to fight out issues through the democratic process.⁷⁵ And finally, assuming that a more equal distribution of resources and opportunities, however indirectly achieved, is one motive for adopting a Bill of Rights — which I readily concede is not always the case in fact — it is open to question who actually wins and loses in a system which forsakes the rough-and- tumble of political compromise for the absolute pronouncements, on self-professedly ‘rational’ grounds, of elite judges with quite similar backgrounds. Do the disadvantaged gain (z.e. women, labourers, minorities, the poor) or the elite (z.e. companies, the wealthy, the politically active)?

These sentiments, of course, are simply my own and do not seem to be widely shared today. Perhaps I am too optimistic about elected politicians. Whether that be the case or not, experience does show that the preponderance of those same politicians and legislators will, once a Bill of Rights has been implemented, defer to the judiciary’s particular interpretations of the broadly proclaimed rights therein. I presume this deference, where not simply an excuse for avoiding difficult decisions, is occasionally due to a fear of being perceived to be hostile to ‘real’, ‘objective’, ‘actual’ rights. This fear may also help account for the absence of any such instrument ever being repealed.⁷⁶ Or perhaps their hardiness is more the result of an actual, or perceived, utility — or even of a perceived (but wrongly so says the sceptic) inherent value.

In any event, many people assuredly do believe and speak as though there are ‘objective’, ‘rational’ moral standards as well as ‘real’, ‘inherent’ non-legal rights.

If such a conception be incoherent and unsustainable, the (false) belief may nevertheless have a good, beneficial outcome. Consequences need not be tied unbreakably to truth. One is always free to argue that the profession of objective moral standards, or likewise of real, higher rights, has good results whether valid and well-founded or not. Similarly one might approve of a shift of power to elite judges but prefer it to be done surreptitiously (or more accurately, openly but not stressed or even mentioned — there being other inducements to divert attention). Arguments such as these can accept the tenets of moral scepticism; they simply take a different view of consequences and sentiments than I. Mine is a full-blooded scepticism but not a cynical scepticism.

Less provocatively, there is that sceptic’s argument which says that the claims to objectivity made by Bills of Rights should be exposed and de-mystified but that otherwise the instruments themselves are sometimes useful, if for nothing else than the explicit statement they make of normally accepted levels of conduct by those in power. I am not unattracted to such arguments if a way is found to limit the power of judges.

As for ‘how’ and ‘why’ explanations, I repeat that standards can emerge that represent a convergence of people’s sentiments. This, I would say, is what has happened with the standards commonly known as ‘human rights’. Especially since the Second World War opinion in many places has moved towards recognising these very general standards regarding free speech, religious tolerance, and the preclusion of torture, inter alia, as criteria of acceptable conduct. Once emerged and widely held these international norms result in pressure on dissenting states to conform and also establish a guideline for claiming (non-legal) rights. With such benefits, where these widely followed norms accord with one’s own feelings about conduct, the fact many or most people also (wrongly) believe them to be somehow objective or mind-independent may seem of secondary importance.

I do not propose to say more here on these legal instruments which incorporate moral standards and thus, to an uncertain extent, turn non-legal into legal rights. Rather I will conclude this chapter, and this second Part of the book, by returning yet again to the three separate perspectives 1 distinguished at the very beginning of this chapter, and by focusing on perspective (iii).

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Source: Allan James. A Sceptical Theory of Morality and Law. Peter Lang,1998. — 277 p.. 1998

J) Bills of Rights

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