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Rights and the Red Book

Published online by Cambridge University Press:  02 January 2018

Roger Brownsword  and
Ian J. Harden
Roger Brownsword
Affiliation:
University of Sheffield
Ian J. Harden
Affiliation:
University of Sheffield
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Extract

This paper has two starting points, one theoretical the other practical. The theoretical starting point is Ronald Dworkin's rights thesis; the practical starting point is the controversial case of Bushell v Secretary of State for the Environment. Our concern is to examine the relationship between the rights thesis and public law disputes such as Bushell. We suggest that this examination throws up some important leads as regards the development of a normative theory of adjudication for public law cases.

Type
Research Article
Information
Legal Studies , Volume 1 , Issue 1 , March 1981 , pp. 94 - 99
Copyright
Copyright © Society of Legal Scholars 1981

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References

1. [1980] 3 WLR 22, HL.

2. Dworkin Taking Rights Seriously, p. 84.

3. Ibid., p. 345 (emphasis supplied).

4. Ibid.

5. Ibid., p. 100.

6. [1980] 3 WLR 22 at 36.

7. Lords Diplock, Fraser, and Lane, and Viscount Dilhorne; with Lord Edmund-Davies dissenting, [1980]3 WLR 22, HL; (1979) 78 LGR 10, CA; (1977) 36P & CR 363, DC.

8. [1980] 3 WLR 22 at 27.

9. Ibid., at 47.

10. See Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865.

11. Cf. Levin ‘Opening up the planning process’ in Hatch Towards Participation in Local Services (Fabian tract 419), p. 16.

12. Or, if the idea of one correct conception of the common good is thought to be illusory, the judge might be able to promote procedures that would facilitate open and rational discussion of all points of view, cf. Stewart ‘The Reformation of Administrative Law’ 88 HLR 1667, 1682–7, and Griffith ‘The Political Constitution’ (1979) 42 MLR 1.

13. Of course we are not suggesting that in Bushell the objectors were short of institutional rights.

14. For the decline of Private law forms see e g Kamenka and Tay ‘Beyond Bourgeois Individualism: the Contemporary Crisis in L& and Legal Ideology’ in Kamenka and Neale Feudalism, Capitalism and Beyond. And for a review of the normative claims of the rights thesis in civil disputes see our ‘Jurisprudence, Justification, and Adjudication’ (Anglo-American LR forthcoming).