Stone, Adrienne --- "Disagreement and an Australian Bill of Rights" [2002] MelbULawRw 25; (2002) 26(2) Melbourne University Law Review 478
[1] Jeremy Waldron, Law and Disagreement (1999).
[2] Ibid 32.
[3] Ibid 31–2.
[4] Ibid ch 6. For a critique of Waldron’s textualism, see Jeffrey Goldsworthy, ‘Legislation, Interpretation, and Judicial Review’ (2001) 51 University of Toronto Law Journal 75.
[5] Waldron, Law and Disagreement, above n 1, chs 10–13.
[6] Justice Scalia of the United States Supreme Court is perhaps the best known advocate of textualism in statutory interpretation. See Justice Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (1997). For other (also interesting) critiques of bills of rights, see Mark Tushnet, Taking the Constitution Away from the Courts (1999); Gerald Rosenberg¸ The Hollow Hope: Can Courts Bring About Social Change? (1991) and, for critiques not confined to the United States Bill of Rights, see Tom Campbell, K D Ewing and Adam Tomkins (eds), Sceptical Essays on Human Rights (2001); James Allan, ‘Take Heed Australia — A Statutory Bill of Rights and Its Inflationary Effect’ [2001] DeakinLawRw 17; (2001) 6 Deakin Law Review 322.
[7] Jeffrey Goldsworthy expresses a widely held view when he describes Waldron as ‘one of the most brilliant political and legal philosophers writing in English today’: Goldsworthy, above n 4, 75.
[8] Elsewhere, Waldron describes the tradition of liberal political theory within which he writes:
It is a heritage which prizes individuality, which requires social and political power to justify itself at the tribunal of the people’s interests as they themselves conceive them, and which ... insists, in Mill’s words, that ‘[h]uman nature is not a machine to be built after a model’ and it is ‘the privilege and proper condition of a human being ... to use and interpret the experience [of his community] in his own way’.
Jeremy Waldron, Liberal Rights: Collected Papers 1981–1991 (1993) 1–2.
[9] See, eg, Waldron, Law and Disagreement, above n 1, ch 7 (a critique of Rawls’ political theory); ch 13 (a critique of Dworkin’s argument for a bill of rights).
[10] For example, the government of the Australian Capital Territory has recently established the Bill of Rights Consultative Committee, chaired by Professor Hilary Charlesworth, to consider the adoption of a bill of rights for the ACT: see John Stanhope, ‘Bill of Rights Terms of Reference’ (Press Release, 3 April 2002). The adoption of an Australian Charter of Rights and Freedoms is official policy of the Australian Democrats: Australian Democrats, Constitutional Matters: An Australian Charter of Rights and Freedoms (2001) <http://www.democrats.org.au/policies/> at 10 July 2002.
[11] Waldron, Law and Disagreement, above n 1, 212.
[12] Ibid 216. A ‘rights-based’ theory can lead to normative recommendations, like John Rawls’ ‘difference principle’, which are not formulated in terms of rights at all. Conversely, Waldron also points to arguments that a non-rights-based theory, like utilitarianism, could lead to a commitment to some kind of rights ‘at the surface’: at 216. Thus he concludes, ‘we cannot infer much about the practical recommendations of a normative theory from the character of its fundamental premises’: at 216–17. Rawls’ difference principle allows unequal distribution of wealth and income only if it operates to the benefit of the least advantaged members of society: John Rawls, A Theory of Justice (1972) 75–80.
[13] Waldron, Law and Disagreement, above n 1, 217–18.
[14] Ibid 219–21.
[15] Ibid 245–6. Waldron is alluding to Ronald Dworkin’s theory of rights: see Ronald Dworkin ‘Rights as Trumps’ in Jeremy Waldron (ed), Theories of Rights (1984) 153. See also Hilary Charlesworth, Writing in Rights: Australia and the Protection of Human Rights (2002) 38–9.
[16] Waldron, Law and Disagreement, above n 1, 225–6.
[17] Ibid 228.
[18] Ibid 229.
[19] Ibid 181.
[20] Ibid.
[21] As Michael Moore points out, bills of rights seem to invite moral reasoning with the use of phrases like ‘due process’, ‘equal protection’, ‘free exercise of religion’ and ‘cruel and unusual punishment’: Michael Moore, ‘Moral Reality Revisited’ (1992) 90 Michigan Law Review 2424, 2469.
[22] Waldron points to Moore’s argument that ‘[i]f one’s daily task is to impose values on others, to think that these are only one’s own personal values doubtlessly makes the job hard to perform at all. To foist personal values onto hapless litigants is not for many temperaments a satisfying role’: Michael Moore, ‘Moral Reality’ [1982] Wisconsin Law Review 1061, 1064, cited in Waldron, Law and Disagreement, above n 1, 181.
[23] ‘Emotivism is the theory that moral terms are used to express and evoke emotions, rather than primarily to convey information’: Waldron, Law and Disagreement, above n 1, 172. See also Jeremy Waldron, ‘Moral Truth and Judicial Review’ (1998) 43 American Journal of Jurisprudence 75.
[24] Waldron, Law and Disagreement, above n 1, 178 (emphasis in original). Waldron’s invocation of the scientific method may seem naive to some philosophers of science. He does, however, attempt to address the complexities of this method: at ch 8.
[25] Ibid 181 (emphasis in original).
[26] Ibid 102. Waldron’s notion of ‘the circumstances of politics’ is an adaptation of Rawls’ idea of ‘the circumstances of justice’: see Rawls, above n 12, 126–30. As Waldron explains:
The circumstances of justice are those aspects of the human condition, such as moderate scarcity and the limited altruism of individuals, which make justice as a virtue and a practice both possible and necessary. We may say, along similar lines, that the felt need among the members of a certain group for a common framework or decision or course of action on some matter, even in the face of disagreement about what that framework, decision or action should be, are the circumstances of politics.
At 102 (emphasis in original) (citations omitted).
[27] It was first developed in his well-known article: Jeremy Waldron, ‘A Right-Based Critique of Constitutional Rights’ (1993) 13 Oxford Journal of Legal Studies 18.
[28] Waldron, Law and Disagreement, above n 1, 250. See also at 222.
[29] Ibid 229–30.
[30] Ibid 222.
[31] Ibid 108–13.
[32] Ibid 109.
[33] Ibid (emphasis in original).
[34] By the right of participation, Waldron is referring to the demand that the popular element in government should be decisive: ibid 235. A right of participation can be exercised by citizens voting in a system of representative government. Waldron does not mean to refer to a directly participatory democracy.
[35] Ibid 232, quoting William Cobbett, Advice to Young Men and (Incidentally) to Young Women in the Middle and Higher Ranks of Life in a Series of Letters Addressed to a Youth, a Bachelor, a Lover, a Husband, a Father, and a Citizen or a Subject (first published 1830, 1980 ed) 317.
[36] Waldron also considers and rejects ‘expressivist’ justifications for voting: Waldron, Law and Disagreement, above n 1, 239–43.
[38] Waldron, Law and Disagreement, above n 1, 253:
rights-instrumentalism seems to face the difficulty that it presupposes our possession of the truth about rights in designing an authoritative procedure whose point it is to settle that very issue. ... There seems, then, something question-begging about using rights-instrumentalism as a basis for the design of political procedures among people who disagree on issues such as this.
[39] Ibid.
[40] Ibid 253.
[41] Ibid.
[42] Ibid 254 (emphasis added).
[43] Ibid.
[44] Ibid 255.
[45] Ibid 257–60. For earlier essays considering this dispute, see Samuel Freeman, ‘Constitutional Democracy and the Legitimacy of Judicial Review’ (1990) 9 Law and Philosophy 326 and Jeremy Waldron, ‘Freeman’s Defense of Judicial Review’ (1994) 13 Law and Philosophy 27. Both essays are reproduced in Tom Campbell and Adrienne Stone (eds), Law and Democracy (forthcoming 2002) and discussed in Tom Campbell and Adrienne Stone, ‘Introduction: Bringing Law and Democracy Together’ in Tom Campbell and Adrienne Stone (eds), Law and Democracy (forthcoming 2002).
[46] Waldron, Law and Disagreement, above n 1, 259.
[47] Ibid 268.
[48] Charlesworth, above n 15, 39.
[49] Waldron, Law and Disagreement, above n 1, ch 13.
[50] Thus, some rights (like freedom of speech) operate to ensure an effective process of representation by preventing those in power from keeping others out, and other rights (like equal protection) protect minorities likely to be disregarded by the majority. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) 102–4.
[51] Waldron, Law and Disagreement, above n 1, 283. See Ronald Dworkin, Freedom’s Law: The Moral Reading of the American Constitution (1996) 25.
[52] Dworkin, above n 51, 25–6, cited in Waldron, Law and Disagreement, above n 1, 284.
[53] Waldron, Law and Disagreement, above n 1, 283.
[54] Ibid 284.
[55] Ibid 285.
[56] Ibid 294.
[57] Ibid 293.
[58] Ibid 295–6.
[59] Ibid 293–4 (emphasis in original).
[60] Jeremy Kirk summarises these arguments in Jeremy Kirk, ‘Rights, Review and Reasons for Restraint’ [2001] SydLawRw 2; (2001) 23 Sydney Law Review 19, 22–3.
[62] Waldron, Law and Disagreement, above n 1, 142.
[63] Ibid 123.
[64] Ibid 142.
[65] Ibid 83 (emphasis in original) (citations omitted).
[66] See Goldsworthy, above n 4, 82–6; William Eskridge Jr, ‘Book Review Essay — The Circumstances of Politics and the Application of Statutes’ (2000) 100 Columbia Law Review 558.
[67] Goldsworthy, above n 4, 83–5; Eskridge, above n 66, 579–80.
[68] Goldsworthy, above n 4, 85.
[69] Ronald Dworkin’s argument about the rights provisions of the United States Constitution is a case in point. Dworkin argues that these provisions should not be interpreted by reference to what the framers (or anyone else at the time) thought that they meant. On the contrary, these provisions were intended to embody abstract moral principles that would be interpreted in accordance with the moral judgments of the judiciary. See Dworkin, above n 51.
[70] Eskridge, above n 66, 579 (citations omitted).
[71] Peter Hogg and Allison Bushell, ‘The Charter Dialogue between Courts and Legislatures (Or Perhaps the Charter of Rights Isn’t Such a Bad Thing after All)’ (1997) 35 Osgoode Hall Law Journal 75, 105.
[72] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act 1982, being Schedule B to the Canada Act 1982 (UK) c 11 (‘Charter’) s 33. See discussion below Part IV(E).
[73] Robert McCloskey, The American Supreme Court (2nd ed, 1994). See also Rosenberg, above n 6, who argues that the power of the US Supreme Court to bring about social change has been overstated.
[74] Eskridge, above n 66, 579 (citations omitted).
[75] That is, he ascribes to the metaethical theory that moral statements are statements of fact that are either true or false.
[76] Moore, ‘Moral Reality Revisited’, above n 21, 2477.
[77] Ibid.
[78] See text accompanying above n 41.
[79] Waldron, ‘Moral Truth and Judicial Review’, above n 23, 84–8.
[80] Ibid 81–2 (emphasis in original).
[81] Moore, ‘Moral Reality Revisited’, above n 21, 2479–80.
[82] Waldron, ‘Moral Truth and Judicial Review’, above n 23, 88.
[83] Eskridge, above n 66, 579–80.
[84] Waldron, Law and Disagreement, above n 1, 305.
[85] Ibid 30–1, 89, 230.
[86] Ibid 304. On matters of rights, he reminds us, there is ample room for sincere and reasonable disagreement.
[87] Ibid 31.
[88] Ibid 32.
[89] Ibid 32–3 (emphasis in original):
Unless we propose to treat the authority claimed for legislation as pure superstition, eventually that claim requires philosophical explication. Or, even if we are convinced that the conditions under which it is enacted seriously discredit legislation as an authoritative source of law, it behoves us to ask: would this be true of all legislation, legislation enacted under any conditions, or only legislation enacted under conditions that fell seriously short of some ideal? If we take the latter approach, then it is incumbent on us to articulate a reasonable ideal, showing how the authority of legislation could be linked practically to certain conditions of legislating in the circumstances of modern life.
[90] Ibid 304.
[91] Richard Posner, ‘Book Review — Review of Jeremy Waldron, Law and Disagreement’ (2000) 100 Columbia Law Review 582, 591 (citations omitted).
[92] For an excellent argument along these lines, see Wojciech Sadurski¸ ‘Judicial Review and the Protection of Constitutional Rights’ (2002) 22 Oxford Journal of Legal Studies 275.
[93] Like New Zealand before the New Zealand Bill of Rights Act 1990 (NZ) and the United Kingdom before the Human Rights Act 1998 (UK) c 42, which came into force in October 2000.
[94] Waldron is a New Zealander, educated at Oxford, who has spent many years teaching in the United States.
[95] One exception is South Africa: Constitution of the Republic of South Africa Act 1996 (South Africa) c 2.
[96] For example, the Australian Democrats have proposed a statutory bill of rights: Australian Bill of Rights Bill 2001 (Cth).
[97] For an argument that the New Zealand Bill of Rights Act 1990 (NZ) has, nonetheless, been a powerful judicial tool, see Allan, above n 6.
[98] Human Rights Act 1998 (UK) c 42, s 4.
[99] Stephen Gardbaum, ‘The New Commonwealth Model of Constitutionalism’ (2002) 49 American Journal of Comparative Law 707.
[100] Jeffrey Goldsworthy, ‘Judicial Review, Legislative Override and Democracy’ in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds), Human Rights: Philosophical Foundations and Institutional Design (forthcoming, 2003).
[101] Indeed, the nature of federal relations has recently been subject to intense and renewed controversy with at least two versions of federalism, described by commentators as ‘co-operative’ and ‘co-ordinate federalism’, competing for ascendancy in the High Court: Graeme Hill, ‘Revisiting Wakim and Hughes: The Distinct Demands of Federalism’ (2002) 13 Public Law Review (forthcoming).
[*] BA, LLB (UNSW), JSD (Columbia); Fellow, Law Program, Research School of Social Sciences, Australian National University.