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50 - Bills of Rights

from Part III D - The Legal System

Published online by Cambridge University Press:  27 March 2025

Richard Bellamy
Affiliation:
University College London
Jeff King
Affiliation:
University College London
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Summary

This chapter focuses not on the possible content of a Bill of Rights, such as whether it should contain social and economic rights or only civil and political rights, but on the form any such Bill needs to take to be legitimate in a manner congruent with the moral norms of equal concern and respect underlying both rights and democracy. It explores four conceptions of Bills of Rights and the different ways they relate to democratic theory and practice. I start with the view of a Bill of Rights as distinct from normal legislation and that is ultimately the responsibility of the courts to defend. I distinguish between substantive and procedural accounts, in which the first focuses on upholding the rights necessary to ensure the outputs of democratic decisions reflect democratic norms whereas the second seeks to uphold the rights required for a due democratic process. I then turn to legislated rights and the role of Parliamentary Bills of Rights. Finally, I examine the role of democratic constitutional politics as a means for justifying and legitimising such rights instruments, be they upheld by legislatures or courts.

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Publisher: Cambridge University Press
Print publication year: 2025

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References

Recommended Reading

Bellamy, R. (2011). Political Constitutionalism and the Human Rights Act. International Journal of Constitutional Law, 9 (1), 86111CrossRefGoogle Scholar
Bellamy, R. (2012). Rights as Democracy, Critical Review of International Social and Political Philosophy, 15 (4), 449471.CrossRefGoogle Scholar
Dworkin, R. (1996a). Does Britain Need a Bill of Rights? In Freedom’s Law: The Moral Reading of the American Constitution. Oxford: Oxford University Press, pp. 352372.Google Scholar
Dworkin, R. (1996b). Introduction: The Moral Reading and the Majoritarian Premise. In Freedom’s Law: The Moral Reading of the American Constitution. Oxford: Oxford University Press, pp. 138.Google Scholar
Ely, J. H. (1980). Democracy and Distrust: A Theory of Judicial Review, Cambridge, MA.: Harvard University Press.Google Scholar
Fabre, C. (2000). A Philosophical Argument for a Bill of Rights. British Journal of Political Science, 30 (1), 7798.CrossRefGoogle Scholar
Habermas, J. (1995). On the Internal Relation between the Rule of Law and Democracy. European Journal of Philosophy, 3 (1), 1221CrossRefGoogle Scholar
Hand, L. (1958). The Bill of Rights, Cambridge, MA.: Harvard University Press.CrossRefGoogle Scholar
Hiebert, J. L. (2006). Parliamentary Bills of Rights: An Alternative Model? Modern Law Review, 69 (1), 728.CrossRefGoogle Scholar
Tushnet, M. (1980). Darkness on the Edge of Town: The Contribution of John Hart Ely to Constitutional Theory, Yale Law Journal, 89 (6), 10371062.CrossRefGoogle Scholar
Waldron, J. (1999). Law and Disagreement, Oxford: Oxford University Press, ch. 10.CrossRefGoogle Scholar

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