Academic

Miller on "Limitations Clauses" & Justification

By Lawrence Solum

Bradley W. Miller (University of Western Ontario, Faculty of Law) has posted Justification and Rights Limitations (EXPOUNDING THE CONSTITUTION: ESSAYS IN CONSTITUTIONAL THEORY, Grant Huscroft, ed., Cambridge University Press, 2008) on SSRN. Here is the abstract:

A common feature of contemporary bills of rights is the inclusion of limitations clauses. In turn, limitations clauses tend to give rise to adjudicative structures that (at least formally) sever (1) the question of whether a right has been infringed, from (2) the determination of whether a limitation or infringement of the right may nevertheless be justified. Bills of rights drafted in such a way are often thought of as an advance over bills of rights in which reasonable limits are inherent in the conception of the constitutional rights themselves. In this paper I argue the contrary; there is no justification for the two-stage division.

The most influential theoretical support for the two-stage division between definition and justification is provided by Ronald Dworkin's distinction between policy and principle: definition of rights should be understood as a matter of principle, while limitations on rights should be understood as matters of majoritarian preference, of policy. Although influential, Dworkin's distinction is vulnerable to some well-known objections and, in particular, rests on a fundamental misunderstanding of the nature of the considerations that ought to justify limitations on rights.

I argue that courts that employ the two-stage division exaggerate the reasons for action generated by a first stage finding of a right infringement, and systematically devalue the reasons generated by the public good. Of course it is possible to overcome the problems inherent in the model by diligent attention to the reasons offered in support of impugned legislation and the manner in which that legislation might serve the common good. I consider some recent decisions of the Supreme Court of Canada interpreting the Canadian Charter of Rights and Freedoms, as examples of both the common errors and their remedy.

Full post as published by Legal Theory Blog on January 21, 2008 (boomark / email).