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Constitutional Rights, Balancing and the Structure of Autonomy

Published online by Cambridge University Press:  20 July 2015

George Pavlakos
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Extract

The question of the character of constitutional rights norms is complex and admits of no easy answer. Without reducing the complexity of the issue, I attempt in this paper to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning that combines both balancing (as Robert Alexy admits) and the grounds as to why balancing is appropriate (deontological constraints). Absent the latter type of reason, the application of constitutional principles remains a pure instance of balancing. Each time those reasons are touched upon, however, balancing becomes subject to deontological constraints. Yet deontological reasons are neither self-proclaiming nor complete. Rather they require for their articulation the background of an already operational practice of practical (legal) reasoning. This practice exemplifies what I shall dub the structure of autonomy, that is, a set of regulative ideals, not yet definitive norms, that derive from the reflective character of human agency. This structure comes to light when one turns to the agent’s point of view – to the point of view of someone who is engaged reflectively with practical questions (questions about rights are par excellence questions of this type). The structure of autonomy is more fundamental than any deontological or teleological reasons: it is in its light that deontology and teleology need to be understood as representing merely complementary forms of argument, which can be employed in reasoning that aims to maximise constitutional rights provisions. At the same time, the structure of autonomy as a regulative ideal generates prima facie reasons for allocating greater weight to deontological arguments in the relevant contexts of balancing. Such prima-facie reasons do not prescribe fully-fledged deontological constraints, but merely set the burden of proof in favour of specific reasons and ensure that the structure of autonomy be respected overall.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 24 , Issue 1 , January 2011 , pp. 129 - 153
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Copyright © Canadian Journal of Law and Jurisprudence 2011

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References

This paper is a part of a larger project entitled ‘the Constitution of Globalisation’, funded by the Research Foundation Flanders (FWO). I owe many thanks to Alexia Herwig for detailed comments on an earlier draft and to Sylvie Loriaux for numerous discussions on Rawls and distributive justice. I am especially indebted to Stanley L. Paulson for his detailed comments on language and content. The paper was presented as a lecture on two occasions: in December 2007 in the Jurisprudence Research Group Seminar Series in the Faculty of Laws, University of Antwerp, and in July 2008 at the Doktorandenseminar of the Chair of Public Law and Legal Philosophy in the Faculty of Law, University of Kiel. I thank the participants at both events for their extremely valuable comments, especially Robert Alexy, Stefan Sottiaux and Catherine Van de Heyning.

1. One of the most powerful expressions of this view is to be found in the work of Joseph Raz. He argues for the incommensurability of values as a result of their being grounded in autonomy (but not outside it). The most detailed formulation of his views on this matter is to be found in Raz, Joseph, The Morality of Freedom (Oxford: Oxford University Press, 1986) at ch. 13 Google Scholar.

2. It is unfortunate that most of Alexy’s critics ignore the part of his work that sets out the philosophical background of his theory of constitutional rights. More careful engagement with it would probably have prevented a great deal of the misunderstanding that had occurred in the debate.

3. I assume here that a full-blooded deontological view, such as Dworkin’s theory of rights as trumps, argues that rights by their very nature cannot be subjected to balancing: see for instance his views on the Danish cartoons of Mohamed, in Dworkin, Ronald “Even bigots and Holocaust deniers must have their say” in The Guardian (14 February 2006)Google Scholar.

4. See also Kumm, Mattias, “Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice” (2004) 2 I CON 574 at 590Google Scholar.

5. While the former configuration captures classical hedonism the latter corresponds to a so-called externalist or agent-independent realism akin to the one of G.E. Moore. See Principia Ethica, revised ed. (Cambridge: Cambridge University Press, 1993) ch. 1 and 6Google Scholar.

6. Scanlon, T. M., “Wrongness and Reasons” in Shafer-Landau, Russ, ed., Oxford Studies in Metaethics, vol. 2 (Oxford: Oxford University Press, 2007) at 5 Google Scholar.

7. Ridge, Michael, “Reasons for Action: Agent-Neutral vs. Agent-Relative”, The Stanford Encyclopedia of Philosophy (Fall 2008 Edition)Google Scholar, Edward N. Zalta, ed., URL = http://plato.stanford.edu/archives/fa112008/entries/reasons-agent/; see also Dreier, James, “Structures of Normative Theories” (1993) 76 The Monist 22 CrossRefGoogle Scholar.

8. I don’t mean to suggest that this is an empirical exercise consisting in the recording of what people actually think is the right reason to act. Rather, it is a normative exercise that reconstructs the agent’s point of view. Compare the last part of the paper where the idea of the structure of autonomy is developed.

9. For two recent contributions along these lines see Letsas, George, “Two Concepts of the Margin of Appreciation” (2006) 26 Oxford J. Legal Stud. 705 CrossRefGoogle Scholar; and Möller, Kai, “Balancing and the Structure of Constitutional Rights” (2007) 5 I CON 453 Google Scholar. On these views it would appear that we need to distinguish between such constitutional provisions that merely appear to be introducing rights and those which actually do so. This claim sounds absurd, but may also be highly controversial from the point of view of democratic legitimacy.

10. See Möller, ibid. at 459.

11. Pavlakos, George, “Two Conceptions of Universalisation” in Bankowski, Zenon & MacLean, James, eds., The Universal and the Particular in Legal Reasoning (Aldershot, UK: Ashgate, 2006) at 159 Google Scholar; Holton, Richard, “Principles and Particularisms” (2002) 67 Proceedings of the Aristotelian Society Supplementary Volume 191;Google Scholar Ridge, supra note 7.

12. McKeever, Sean & Ridge, Michael, Principled Ethics: Generalism as a Regulative Ideal (Oxford: Oxford University Press, 2006) at 20—24 CrossRefGoogle Scholar.

13. Letsas, George, A Theory of Interpretation of the European Convention on Human Rights (Oxford: Oxford University Press, 2007) at 8, 102-3CrossRefGoogle Scholar. See also Dworkin, Ronald, “Rights as Trumps” in Waldron, Jeremy, ed., Theories of Rights (Oxford: Oxford University Press, 1984)Google Scholar, which has become the locus classicus for these views.

14. Rawls, John, A Theory of Justice, revised ed. (Oxford: Oxford University Press, 1999) at 26 Google Scholar.

15. See Nagel, Thomas, The Possibility of Altruism (Princeton, NJ: Princeton University Press, 1970)Google Scholar.

16. For the shortcomings of Nagel’s proposal see Sturgeon, Nicholas, “Altruism, Solipsism and the Objectivity of Reasons” (1974) 83 Phil. Rev. 374 CrossRefGoogle Scholar.

17. Something like Hart’s internal point of view would be a necessary but not sufficient condition for the agent’s point of view as I use it here; for I take it to include the additional dimension of a claim to normative correctness, which ranges over particular domains and strives for coherence between legal and moral reasons. In light of this, the agent’s point of view may lie closer to the participant’s perspective as defined by Alexy, Robert in his The Argument from Injustice: A Reply to Legal Positivism (Oxford: Clarendon Press, 2002) at 35 ffGoogle Scholar.

18. I am indebted to Alexia Herwig for Pressing this point.

19. Both sides of the debate are presented in an exhaustive way in Owen, David G., ed., Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1997)CrossRefGoogle Scholar.

20. I take teleology here to mean simply that value pertains to patterns as states of affairs that can be defined independently of persons. Such patterns may range from strict equality, specified according to some relevant dimension, to some formula that maximises net utility, in which case the contrast becomes more poignant. Theories of distributive justice, which propose such a structure have been labelled ‘patterned’; see Nozick, Robert, Anarchy, State and Utopia (New York: Basic Books, 1974) at 153—64 Google Scholar; and in the context of tort law see Ripstein, Arthur, Equality, Responsibility and the Law (Cambridge: Cambridge University Press, 1999) at 27—31 Google Scholar.

21. Context-dependence is used in a non-relativistic manner: it means simply that legal answers require practical reasoning, not that the possibility for correct answers is undermined.

22. Ripstein (see supra note 20 at 48 ff.) proposes a theory of legal responsibility based on the fair distribution of risk according to terms of fair co-operation between autonomous agents.

23. I take proto-normative items to form the conditions for exercising liberty meaningfully. To allude to a well-rehearsed metaphor, they might be compared to the banks of a river, in which the water stands for liberty.

24. In A Theory of Justice, Rawls introduces the general conception of justice which advocates a distributive pattern that applies across the social goods (liberty, opportunity, income and wealth and the social bases of self-respect) and justifies unequal distribution when this works to the advantage of everyone (see Rawls, supra note 14 at 54-55). Although the general conception is qualified later in the book by way of introducing the lexical priority of the liberty principle, there are at least two cases where its rationale survives: first, when less liberty works towards strengthening the total system of liberties shared by all, or is acceptable to those with lesser liberty (ibid. at 266); second, in cases where the lexical priority of the liberty principle is suspended for societies whose circumstances do not allow the effective realization of any liberties (ibid. at 132, 475).

25. Dworkin proposes an argument from a constitutive auction requiring that the state award goods or resources to individuals according to how much they would be prepared to pay in an imaginary auction. When looking into the conditions of the auction, it becomes obvious that the bidders are engaged in a process of maximisation or optimisation of their conceptions of wellness, egoistic calculations and so on. Here, once more, rights as canonical standards exist only after the auction has been played out, but not during the auctioning exercise. For these ideas see Dworkin, Ronald, “What is Equality? Part 2: Equality of Resources” (1981) 10 Phil. & Pub. Affairs 283 Google Scholar.

26. Dworkin would, of course, wish to exclude collective interests from the distributive formula; however, this is not possible without introducing ad hoc external constraints, which escape the rationale of the auction device.

27. Refer also to the discussion in part B, this paper.

28. See articles 8-11 of the European Convention on Human Rights. Except from collective interests the convention specifies as limitations ‘the rights of others’. As there is less controversy about the admissibility of this type of limitation, I shall focus on the case of collective interests.

29. For the relevant case law and comments see especially Ovey, Clare & White, Robin C.A., Jacobs and White: The European Convention on Human Rights, 4th ed. (Oxford: Oxford University Press, 2006) at 232—39 Google Scholar.

30. Hatton v. UK (2002) 34 E.H.R.R

31. Ibid. at para. 98.

32. Ibid. at para. 129.

33. We saw earlier that Nagel’s attempt to defend this point of view was deemed unworkable (see supra section B). Of course this holds also vice-versa: to argue that rights ought to be incorporated into collective goods would imply subscribing to a naïve teleological point of view.

34. This is the view expressed by Dworkin in various writings, but recently in his Is Democracy Possible Here?: Principles for a New Political Debate (Princeton, NJ: Princeton University Press, 2006) at 69—79 Google Scholar; See also Letsas, supra note 13, who applies this rationale to the European Convention on Human Rights.

35. Letsas, supra note 13 at 126-30.

36. Judgement of 15 February 2006, 1 BvR 357/05.

37. Ibid. at paras. 119, 128.

38. Ibid. at para. 122.

39. For the most prominent contemporary strategy to base autonomy on reflection see Korsgaard, Christine M., The Sources of Normativity (Cambridge: Cambridge University Press, 1996)CrossRefGoogle Scholar; In the area of legal theory, see the pioneering Bertea, Stefano, The Normative Claim of Law (Oxford: Hart, 2009)Google Scholar.

40. This is still a descriptive task of human reflection: it simply aims to identify the relevant reasons for action against the background of particular states of affairs.

41. For the failure of an extreme external point of view of agency, see Hart, H.L.A., The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994) at 89 Google Scholar. See also Pavlakos, George, “Practice, Reasons and the Agent’s Point of View” (2009) 22 Ratio Juris 74 CrossRefGoogle Scholar where the issue is argued from the point of view of the possibility of moral knowledge.

42. See the insightful association between the distinction between descriptive and revisionary metaphysics and legal theory by Rodriguez-Blanco, Veronica, “Method in Law: Revision and Description” in Coyle, Sean & Pavlakos, George, eds., Jurisprudence or Legal Science?: A Debate about the Nature of Legal Theory (Oxford: Hart, 2005) at 63 Google Scholar.

43. For the claim to correctness in legal theory, see Alexy, Robert, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Oxford: Clarendon Press, 1989) at 214—20 Google Scholar; see also Alexy, supra note 17 at 34, 127. For a thorough review of the literature on the topic and an original contribution in a Kantian spirit, see Bertea, supra note 39.

44. Such rules have been developed amongst others in the context of discourse theory. For present purposes what is important are not the particular configurations of such rules but their possibility.

45. The dichotomy between deontology and teleology stems from the fear that rights as deontological reasons are under constant threat: in epistemic terms, this fear corresponds to pre-modern essentialist theories, which argue that truth lies outside comprehension and that therefore we are bound, most of the time, to be wrong in our judgements. Such theories are particularly prone to fall pray to the well-rehearsed sceptical argument that if truth is thought-independent and, as a result, requires us to ‘connect’ with the world, the possibility that the ‘connection’ has failed and that we are actually in a state of deep darkness will always exist.

46. Such regulative ideals have the status of rational truths that can be extracted through modest conceptual analysis from the practice of argumentation. See Pavlakos, George, Our Knowledge of the Law: Objectivity and Practice in Legal Theory (Oxford: Hart, 2007) ch. 4 Google Scholar; and Pavlakos, supra note 41.

47. It is Alexy’s aim to show that rational practical reasoning relies on a level thinner than deontology and teleology. In this he is thoroughly Kantian. Kant’s philosophy—which many consider as the paradigmatic instance of deontological ethics—grounds deontological norms on a test of reflective endorsement (by way of endorsement stemming from the categorical imperative). To this extent, moral correctness is not some irreducible property; rather it is itself grounded on our capacity for reflection. Thus, it is reflection that grounds correctness and, indeed, it might turn out that within the limits set by reflection, what counts as a correct norm may be modified and assume new forms on future occasions.