The implications of incommensurability for rights’ adjudication tend to be overlooked in much of contemporary constitutional theory. This paper criticizes the dominant “one right-answer” approach to conflicts of rights, and develops an alternative approach that is better suited to constitutional rights’ adjudication in contemporary pluralistic legal orders. It is submitted that the normative reasons for having courts undertake the value-choices implicit in constitutional rights’ adjudication, and for preferring certain legal methodologies over others, must reflect the role of courts in resolving social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. It is further argued that any theory that builds from this approach needs to answer two inter-related questions: when is constitutional rights’ adjudication by courts appropriate, and how rights’ adjudication should be pursued.
Since the Second World War, the “institutionalisation” of constitutional rights 1, the adoption of procedural paradigms such as those of “the priority of rights over the good” 2, and the idea that to each legal question there is a single right answer have led to a judicialization of the political sphere and to the development of a technocratic culture that leaves limited room for the articulation or realization of competing conceptions of the good. 3 This article criticizes these developments on the basis of concerns related to the incommensurability of rights. 4 It is submitted that the implications of this are significant, particularly when coupled with critiques of the supposed objectivity of judicial adjudication. If taken to their last consequences, accepting these premises leads to the conclusion that constitutional rights do not have an objective meaning that can be identified and applied everywhere and at all times—i.e. the incommensurability of rights and the absence of objective adjudication are fatal to claims of absolute universality and objectivity of constitutional rights.
The article is structured as follows. A first section provides an overview of the history behind the current rights’ culture and of the intellectual underpinnings of the prevalent “one right-answer” approach to conflicts of rights. A second section will pursue a critique of this position and intellectual tradition. A third and last section advances an alternative approach, better suited to rights’ adjudication in contemporary pluralistic legal orders. It is submitted that a humbler approach to constitutional rights’ adjudication—one that is sensitive to the particular circumstances of the relevant jurisdiction—better reflects the realities of constitutional adjudication and is normatively preferable to the dominant approach. It is further argued that the normative reasons for having courts undertake the value-choices implicit in rights’ adjudication, and for preferring certain legal methodologies over others, are to a large extent based on the added value that courts can bring to the resolution of social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. Constitutional rights must fit the society in which they are applied — where they may “drip” into political discourse and “crush” unconstitutional actions. Such an institutionally-sensitive approach allows for the development of a high-level framework regarding constitutional rights’ adjudication that can be applied everywhere, but that must be adapted in each jurisdiction to reflect local realities.
II The Origins of the Rights Culture
A. Natural Law
Since the Second World War, rights discourse has established itself as a common currency of both politics and law. 5 Contemporary public discourse, especially when appealing to such core values as liberty, equality, and justice, is invariably cast in the language of rights. 6 But even though the rights revolution is a recent phenomenon, its intellectual origins go far back, to the dawn of Western civilization. 7
From very early on, law has been associated with justice. Natural law has always based its claim to superior normative status on the existence of something—a divinely ordained order, moral rights, reason, etc.—which “naturally” prevails over whatever particular rules may be in place at any given time and space. Already in Hesiod we find an implicit adumbration of natural law or, rather, an application of the term nomos to domains for which we would nowadays use “natural law”:
The son of Kronos [Zeus] has appointed the following nomos for humans: that fish and beasts and winged birds should devour one another, because they have no share in justice. But to human beings he gave justice, which is far the best. 8
The co-existence of natural law and positive rules imposed by force was nonetheless perceived as a source of conflicts, and potentially tragedy. The most famous example of such a conflict can be found in Aristotle’s analysis of Sophocles’ “Antigone” in his “Rhetoric” and, in particular, in its discussion of the conflict between Antigone and Creon, king of Thebes. The conflict was, in mundane terms, between Creon’s edict requiring that Antigone’s brother’s body remain unburied on the battlefield, prey for carrion-eaters, and Antigone’s claim to a right to bury her brother. Aristotle describes Antigone’s claim as being based on natural law, 9 and that:
“Universal law is the law of nature. For there really is, as everyone to some extent divines, a natural justice and injustice that is binding on all men, even on those who have no association or covenant with each other.” 10
Greek theorists of natural law, such as Plato and Aristotle, thought right conduct and right law were both equivalent and objective facts. This identity between objective morality and natural law was shared by the Stoics. Stoicism equated nature with God, the perfectly rational and all-pervasive cause of the Universe, and took the world as a whole to be divinely and rationally administered. They argued that, by properly reflecting on the natural order, one would recognize that goodness and authentic lawfulness consist in conformity to correct reason. 11
This Stoic idea of natural law gained widespread currency through Cicero’s works on political theory. In “The Republic”, Cicero writes down what is for many the classic definition of natural law: 12
True law is right reason, in agreement with nature, diffused over everyone, consistent, everlasting, whose nature is to advocate duty by prescription and to deter wrongdoing by prohibition . . . It is wrong to alter this law, nor is it permissible to repeal any part of it, and it is impossible to abolish it completely. We cannot be absolved from this law by Senate or people, nor need we look for any outside interpreter of it or commentator. There will not be a different law at Rome and at Athens, or a different law now and in the future, but one law, everlasting and immutable, will hold good for all peoples and at all times. And there will be one master and ruler for us all in common, God, who is the founder of this law, its promulgator and its judge. 13
This line of thought was coupled with Christianity – with its emphasis on the universality of Revelation – by Saint Paul. 14 The role of natural law in Christian doctrine and medieval thought was given its most complete expression by St. Thomas Aquinas who, together with the scholastics, identified an inaccessible first cause (i.e., God) that instituted second causes accessible to men by reason (e.g. physical laws regulating both physical phenomena and men). 15 Amongst these second causes was natural law, which accorded with both to Scripture and reason, but also needed to be promulgated by those with political power. 16
In time, this “second causes” doctrine became the seed for the move from a divine to a purely rational foundation for natural law. 17 Hugo de Grotius’ statement that natural law exists: “even if we were to suppose (what we cannot suppose without the greatest wickedness) that there is no God, or that human affairs are of no concern to Him”, implicitly allows for a complete decoupling of natural law from any theological underpinnings. 18 Despite this decoupling, early-modern secular jusnaturalism shared an assumption with religious jusnaturalism born of their common intellectual origins:
that there exists some single principle which not only regulates the course of the sun and the stars, but prescribes their proper behavior to all animate creatures. […] At its center is the vision of an impersonal Nature or Reason or cosmic purpose, or of a divine Creator whose power has endowed all things and creatures each with a specific function; these functions are elements in a single harmonious whole, and are intelligible in terms of it alone. 19
The parents of jusnaturalism, both of religious and secular bents, are thus Greek ethical objectivism and Christian epistemic universalism. 20 As we will see below, these are the origins of the objectivism and naturalism that underpin much of contemporary rights’ theory.
B Individual Rights
The concept of natural law reviewed thus far did not require subjective rights vested in individuals and enforceable against the community. 21 Instead, the idea of individual, subjective natural rights was originally developed by the school of Salamanca 22—particularly by Luis de Molina and Francisco Suarez 23—in its attempt to deal with Lutheran and Calvinist theories on the godliness of civil rulers and the absence of free will. Developing in particular nominalist ideas by Ockham and Mair, the school of Salamanca came to embrace the conception of the individual as a bearer of natural rights within a state of nature. As a result of these natural rights, individuals were thought to possess a right of rebellion when the (Protestant) sovereign did not keep his side of the bargain or infringed upon the precepts of natural law. 24
The idea of grounding the rights of individuals in a state of nature previous to the creation of the state was strikingly original. Taking on a life of their own, subjective rights would eventually become a crucial conceptual toolbox in the development of modern natural law conceptions of the sovereign State. 25 It led to the development of contractualist approaches that attempted to explain how the exercise of absolute sovereignty—as developed in Bodin 26—was compatible with natural law. 27 The contractualists, by:
Treating right as a personal possession rather than an objective state of affairs, […] transformed the concept of jus as it had appeared in Roman law and Thomist thought. Reconfiguring the relationship between authority and right, they promoted individualist and contractualist theories of sovereignty that acknowledged the absolute authority of the sovereign. 28
C Towards Modern Constitutional Rights
At the dawn of the modern age, the basic subjective and objective elements required for the placement of some individual rights above general law were in place. 29 As societies secularized, intellectual debates abandoned the objective-religious foundations of the ideal political order to focus on how individuals constitute polities via a social contract in the light of their pre-political natural rights.30 Yet, this transition from religious to secular underpinnings of the social order left the foundations of natural law unaffected. It was typical of this epoch to consider that both the rules governing nature and society were absolute and, as such, that natural law was both objective and universal.
It was at this point that a crucial step in the conceptualization of individual rights against the state was taken: secular natural rights were moved from the pre-political to the political realm by John Locke. 31 Locke argued that the preservation of property is the main reason people contract with one another to place themselves under a governing authority; accordingly, when a system of government is established, natural rights are not alienated but merely exchanged for state-sanctioned civil rights. If government fails to discharge its responsibilities properly, power devolves back to the people, who retain a right of rebellion for the purpose of preserving their natural rights. 32
The heirs to Locke’s philosophy were the British of the Glorious Revolution and their fellow countrymen, the American colonists. For our purposes, however, the impact of this philosophy was greater in America, where the concepts of a written constitution and of individual rights that are judicially enforceable against the State were first implemented. Before independence, company charters granted by the British Crown had established—in writing—a governing framework for the colonies that neither the chartered companies nor the colonists could alter. 33 The originality of the colonists was to adopt this model for their newly independent country in the form of a formal written Constitution which included the basic rights of citizens as expressed, first, in the Virginia Bill of Rights of 1776, and, then, in the Bill of Rights of 1791. 34 The greatest innovation of this system was, arguably, to accord judges the duty to apply the Constitution in the same way as they applied “any particular act proceeding from the legislative body”, and to set out that “if there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute”. 35 The result was that:
in furtherance of their natural rights, the state was reconstituted and the functions of government delimited. By establishing a modern constitution that laid down this formal framework of government […] citizens could now expect an independent judiciary to protect their basic rights. 36
The intellectual underpinnings of these developments were naturalistic theories of rights understood to provide universally accepted objective principles that posed “natural” limits to those in power. The result was a mechanism for constraining public power by delimiting a sphere of individual freedom as against the State—constitutional rights 37—which eventually became widespread. Later on, the diffusion of judicial review beyond American shores in the wake of World War II created fertile grounds for constitutional rights to spread, starting a “rights revolution”. 38
Building as they do on these blocks, constitutional rights have a number of perceived characteristics around the world. First, they are said to reflect objective values. Second, given that they are grounded in a rational order, they can be subject to “reasoning” through “logic”. Accordingly, rights’ reasoning based on objective readings of natural law allows one to be right about her value judgments. 39 This absoluteness is not accidental: the very purpose of constitutional rights is to create a set of non-political imperative considerations, and to limit “political” state action by implicit reference to an apolitical good society. Through their aprioristic and universal characterization, rights embody objective reason, which gives them great rhetorical power. Political disagreements in areas falling within the scope of constitutional rights are thus no longer framed as legitimate differences, but as fundamental errors. 40
This is a tradition that to this day remains intellectually fertile, as evidenced by the number of theories of “correct” interpretation of constitutional rights that were developed and found a receptive audience over the last decades.41 Rights’ discourse has now established itself as a common currency of both politics and law. Contemporary public discourse in Western countries, particularly when appealing to such core values as liberty, equality, and justice, is invariably cast in the language of rights.
III A Critique of Rights Culture
The imposition of absolute aprioristic standards binding upon a political community—i.e. constitutional rights—coexists in tension with the principle of popular sovereignty. 42 This tension sometimes comes to the fore but is, in the main, submerged by rhetorical devices that distinguish between value-charged law-making and value-neutral judicial adjudication. The judicial adjudication of constitutional rights is premised not only on the objectivity and universality of constitutional rights, but also on its own neutrality and objectivity, which makes: “the apparent objectivity of rights theory dovetail perfectly with the apparent objectivity of judicial method.” 43 In other words, questions about constitutional right are objective – —i.e., pre-determined and knowable, —and should be entrusted to a cadre of independent professionals trained in “fidelity” to the law. 44
This view implicitly takes for granted the objectivity and neutrality of constitutional rights, and the aptness of judges to enforce them objectively and neutrally. Both premises, however, do not withstand scrutiny.
A Against “Objective” Natural Law
There are myriad constitutional rights’ theories that seek to develop principles for identifying “one right solution” to legal problems. Some theories openly ignore existing law and focus on what the law should be on the basis of some select normative factor. Normative basis for such theories include welfare maximization 45, rational principles of justice, 46 or metaphysical theories of human flourishing 47. Other theories are more openly based on legal precepts, as is the case of Dworkin’s theory of constitutional rights as trumps, Ely’s reading of constitutional rights as being representation-reinforcing, Bickel’s reading of constitutional rights as expressions of the fundamental principles of a nation’s political morality, and Möller’s reading of global constitutional rights as being concerned with the protection of interests related to personal autonomy. 48 All these theories are openly normative, and seek to influence the decision of constitutional cases.
These approaches are also all monist—they assert the priority of one value over all others and elaborate theories based on that foundational value’s primacy 49—and rely on strong concepts of rationality. 50 They thereby strive to present public law (and particularly constitutional rights) as a monist version of rationalist metaphysics, according to which moral and legal answers are all both knowable and compatible with one another. 51
It is submitted that this “monism”, and its dependence on “strong” forms of rationality, are not sustainable given the impossibility of gaining access to the contents of a detailed, objective moral order. This critique is not new. It is based on value pluralism, an idea that was at the heart of Isaiah Berlin’s work 52, and has since been adopted in moral philosophy. To put it very broadly, value pluralism argues that upholding an (objective) value often cannot be achieved without the sacrifice of another (also objective, and equally important) value. Central to value pluralism is the acknowledgement that that there is no clear hierarchy of moral ends. Instead, there are thought to be a multiplicity of equally fundamental values that may not only be incompatible but also incommensurable. 53 Raz has summarized its propositions as follows: 54
(a) there is a multiplicity of values that are not merely different manifestations of one supreme value;
(b) there are incompatible values, meaning values cannot all be realized in the life of a single individual, nor, when we consider values that can be instantiated by societies, can they be realized by a single society.
As a result, the difference between values is not merely quantitative but qualitative – and different values may be incommensurable. 55
This is not to say that all questions about goods and values must always shipwreck on the rock of incommensurability—commensuration of goods and evils will usually be available as regards alternative courses of action, insofar as the deliberation about the alternatives remains in the technical domain, as in certain types of cost-benefits analysis. 56 Further, it is possible to arrive at valid reasons for choosing even when dealing with incommensurable alternatives. It is a normal part of life to grapple with competing priorities: the differences in nature and qualities of apples and oranges do not prevent us from choosing between them every time we decide to eat. 57 This can be extrapolated to judicial-making: “Legal systems justifiably—and in fact, necessarily—authorize judges to resolve many issues that can only be justly resolved by reconciling incommensurable considerations”. 58 For example, courts are often required to calculate the amount of damages corresponding to pain, or the length of imprisonment due for committing a crime—requiring a balance between matters that do not share a common metric, or lead themselves to an obvious answer.
Despite this, if it is accepted that incommensurability exists, this has significant consequences for constitutional adjudication. Value pluralism can translate into legal uncertainty when legal norms reflect different values and: (i) there is no express hierarchy of norms or order of value which prioritizes some values over others; and (ii) there is no other accepted legal method or criteria for balancing and prioritizing conflicting values. These conditions tend to be met by constitutional law. Constitutional instruments often express incomplete agreements regarding competing legal values. Most legal orders pursue a number of different constitutional objectives without a clear hierarchical relationship, and without providing a formula on how to resolve conflicts that may arise between those objectives. 59
Value pluralism poses a threat to the modern rights culture at a basic level, by challenging its very premise that a monist prioritization of individual and societal values is possible. 60 Disagreements on how to balance different rights, or about the specific content of individual rights, will often express rival normative conceptions of the good life or the good society. As such, when choices need to be made between rights, some “value” will have to be sacrificed. 61 From a value pluralistic perspective:
When rational inquiry leaves our views of the good deeply at odds, it is vain to appeal to rights. Basic human rights can be justified as giving protection against universal human evils; but even such rights clash with one another, and incompatible settlements of their conflicts can be equally legitimate. When universal evils clash, no theory of rights can tell us what to do. 62
This limitation of monist approaches to constitutional rights can be demonstrated by reference to the monist theories reviewed above. While monists agree that there is one “correct” articulation of the “good”—i.e., they agree that objectivity is possible,—they differ as to what that “correct” normative framework should be. As noted by Sen, all these theories agree that universally applicable constitutional rights extend to everyone, and hence are said to promote some dimension of equality and non-discrimination. Discussions about whether equality is being observed are seemingly technical—after all, they require an empirical assessment of whether disparate treatment is taking place. Nonetheless, these theories invariably fall into a pattern of arguing against approaches ensuring equality in some dimension, on the grounds that they violate the more important requirement of equality in some other sphere. In other words, these theories disagree about the content of values and about their prioritization. 63 Ultimately, each of these theories advances a different conception of what is good and valuable, and thus they differ regarding the identification of the overarching good by reference to which discrimination must not be allowed. 64 In these approaches, as in all theories of rights and justice, differing views on rights ultimately spring from different views on what is “good”. 65
It should be noted that the argument thus far has been framed in ontological terms, so one might legitimately ask: “how do you know monism is not correct?” This is a valid question, but unless there is a method to access objective moral reality, value pluralism has the same bite from an epistemological as from an ontological perspective. In the absence of some demonstration of the validity and contents of naturalism—i.e. a method allowing for the discovery of the absolute, universal foundation of the “good”—monist approaches must be considered arbitrary, with their adoption merely a function of their persuasiveness. 66 This, in effect, entails recognizing, at least from a practical standpoint:
that ends equally ultimate, equally sacred, may contradict each other, that entire systems of value may come into collision without possibility of rational arbitration, and that not merely in exceptional circumstances, as a result of abnormality or accident or error—the clash of Antigone and Creon […]—but as part of the normal human situation.” 67 […] “[When Creon and Antigone disagree] there is not something wrong or incomplete about the arguments they present […]. There are breakdowns and failures in ethical life of a sort that reveal the limitations and inconsistencies in a value claim itself, in its claim to be able to serve as a reason for action. 68
B Against Objective Adjudication
Those who reject purely monist approaches, or at the very least acknowledge that a legal problem can sometimes have more than one single solution, tend to drop grand substantive claims in favor of more limited procedural approaches. This usually leads to a defense of rights’ adjudication on grounds of procedural neutrality and rationality.
A good example of this are defenses of balancing, a technique which plays an important role in the case law of many constitutional courts. 69 Balancing purports to be a tool for solving conflicts between individual rights. In the European— and, increasingly, global—context, balancing is traditionally associated with the principle of proportionality. 70 The best known treatment of proportionality is probably by Alexy, who draws and builds on Dworkin’s conceptual distinction between rules and principles. 71 Given the global preponderance of proportionality as a test for ascertaining whether constitutional rights are infringed, we will use Alexy’s approach as a basis of analysis. 72
For Alexy, constitutional rights are principles—i.e. standards of relatively high generality providing non-conclusive reasons for deontic decisions that may be displaced by other principles, including other constitutional rights. However, Alexy also sees constitutional rights as optimization requirements demanding to be realized to the greatest extent possible. 73 This implies that constitutional rights are value-claims with mere prima facie force, to which balancing is inherent. When constitutional rights and principles collide, the conflict cannot be solved by declaring that one of the principles is invalid or by building exceptions into it. 74 Instead, one must create a conditional relation of precedence for the balancing of constitutional rights in the light of the specific facts of the case. To achieve this, Alexy proposes a “Law of Balancing”, which can be divided into three stages: first, establishing the degree of non-satisfaction of a first principle or right; second, establishing the importance of the competing principle or right; and third, establishing the relationship between the first two elements. This technique, if yielded properly, should create the appearance that legal adjudication leads to purely objective results. 75
However, Alexy himself refused the existence of an objective order of values that could determine a priori the content of adjudication, and expressly admitted that balancing does not lead to a single correct solution in each case. Nonetheless, while it is not possible to find a single substantive answer to all moral and legal questions, he argued that it is possible to develop procedural rules or conditions for rational practical argument. 76 Balancing is thus defended as operating at a purely formal level, with its correctness a matter of discourse and of relative coherence rather than of any external, substantive standards. 77
From an objectivist perspective, the problem is that this neutral, rational “procedural” test injects value-based considerations at two moments: when determining the relative “weight” of the principles involved, 78 and when carrying out the final balancing exercise between the “costs” and “benefits” of each principle. 79 In the absence of sensible standards for comparing and grading values, this means that this test – and every test that seeks to balance between truly different values – contains elements of subjectivity. 80 Procedural tests fail to solve the problem created by the absence of a common metric to values – i.e. their incommensurability. Since conflicts of rights ultimately reflect competing values and different conceptions of the “good”, the relevant rights’ adjudication criteria will of necessity reflect an implicit (and subjective) normative preference for some conception of the good over another. 81
In other words, “balancing” tests are neither purely procedural nor completely neutral. Instead, they require (substantive) value judgements. This means that balancing and proportionality exercises do not bring absolute transparency and objectivity to rights’ adjudication. 82 When a judicial choice is made between equally ultimate, incompatible and incommensurable values, the choice will necessarily lack a purely rational justification regardless of how sophisticated the judicial analysis looks. 83 As Weber put it: “increasing intellectualization and rationalization do not […] indicate an increased and general knowledge of the conditions under which one lives”. 84
In short, rights’ adjudication always requires the exercise of a certain amount of political discretion on the part of courts. This, in turn, raises the question of whether courts are competent and legitimate to pursue such a role.
IV The Use of Rights—A Defense
At the heart of the contemporary rights culture lies a tension that has been latent since at least the Enlightenment between the search for one universal good—objectivism —and the toleration of different views of the good—pluralism. 85 Recent studies in psychology and anthropology seem to support pluralism. They have identified a cluster of different moral themes to which people subscribe, and found that different cultures seem to prioritize different clusters.86 Of these clusters, only one —based on autonomy —is congruent with an individual rights’ culture; and, currently, this cluster seems to prevail only among well-educated westerners. 87
These studies have identified a number of human universals. 88 However, and to put the matter rather broadly, they also found that these universals are high-level modules which details need to be filled in, are too numerous to be adopted simultaneously, and have the potential to be mutually incompatible. 89 As a result, the specific moral principles that an individual holds are the result of her background, including how she was socialized. 90
Given the failure of both objectivist substantive theories of rights and procedural theories of rights’ adjudication, the application of constitutional rights— and their judicial imposition in particular—must find some other justification. If these studies in psychology and anthropology are correct—and it is accepted that not only societies, but even individuals within the same society can legitimately have different values—it follows that any theory of social morality should focus on how to manage conflicts between the values that different people legitimately and naturally hold. Even if these studies are not correct, a similar notion that different conceptions of the good life are legitimate underlies most politically liberal regimes, and a similar focus on the part of political and constitutional theory is justified.
In pluralistic societies, we need common institutions that allow many forms of life to co-exist. Constitutional rights—which often express specific values—are one such institution. 91 Constitutional rights and their judicial adjudication can thus be justified on practical grounds, and particularly on the basis of their suitability to facilitate pluralism and the co-existence of different but equally legitimate life choices.
This “institutional” perspective on constitutional rights has a number of implications. First, it means that the content of individual rights will vary from society to society, and may evolve—as is commonly observed in practice—because this content is the outcome of struggles between alternative views about what a good society should be like. 92 Secondly, and more importantly to our purposes, it implies that a defense of rights’ adjudication must go beyond abstract claims of objectivity and neutrality. The defense must be about the specific discursive and political practices 93 underpinning rights’ adjudication in individual polities—and it must explain why such practices should be preferable to other decision-making processes. 94
At least in the Western world, constitutional rights are an integral part of contemporary legal and political discourse. Even if constitutional rights cannot, by themselves, solve political and social disputes, they frame these disputes and define their terms. 95 Constitutional rights operate as guiding principles around which some communal values and individual interests can be organized, and, in liberal systems, set the primary conditions for the pursuit of personal conceptions of the good. 96
Constitutional rights are particularly useful in the resolution of social disputes because they straddle. On the one hand they are “legal rights embedded and formed by legal argumentative practice (legal rules)”. On the other, they constitute a normative framework said to “exist” prior to and outside the legal system, exerting its influence “in the form of an assertion about how an outside right should be translated into law.” 97 In the way they straddle, constitutional rights point not only to the inter-relationship between politics and law, which are: “two distinct ways of managing the inevitable social facts of agreement and disagreement”. They also serve as mechanisms of institutional choice, since: “to submit a political controversy to legal resolution is to remove it from the political domain” and leave it to courts. 98
Even if conflicts between constitutional rights merely reflected conflicts of political claims—contra their perceived pre- and a-political nature —courts could still legitimately resolve such conflicts. This would be a matter of institutional choice—and institutional choices ultimate depend on the relevant historical, social and institutional context in which they are made.
From an “institutional” perspective, two main questions need to be addressed in the context of rights’ adjudication. The first question is a matter of institutional choice, which is usually disguised as an issue regarding jurisdiction—when should courts be competent to deal with issues under the aegis of constitutional adjudication? The second question is a matter of practice—how should constitutional adjudication proceed? 99 While each of these questions merits a level of attention that exceeds the scope of this article—and, under the terms of any institutional theory like the one sketched above, the answers to these questions must ultimately be identified at the relevant jurisdictional level—an attempt is below made to sketch their basic contours.
A When Should Courts Decide?
Prima facie, courts face structural limitations that would seem to make them unsuitable to engage in the political role inherent to constitutional rights’ adjudication. Courts often lack expertise and resources; have high administrative costs; are subject to information biases in favor of those sufficiently organized to participate in the judicial process; may decide issues without hearing some of the affected interests; do not have the advantage of determining when to adopt politically charged decisions; and lack democratic legitimacy.
However, institutional choices occur in a world of second-bests. The question is not whether courts are ideally suited for politically charged adjudication; it is how they compare to legislatures and governments. In particular, political processes can be subject to both majoritarian and minoritarian biases which may make the allocation of decision-making powers to courts appropriate. Majoritarian biases occur when the majority adopts decisions that ignore or disproportionately harm the interests of minorities. A particular concern is with acts where: “prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.” 100 On the other hand, minoritarian biases may occur when a minority group of some sort benefits from better access to the seats of power through personal influence, organization, information, or sophistication. Under these conditions, minorities may impose losses that are spread out across the majority of people in a way that makes political reaction unlikely or unfeasible. 101 The trade-of is thus between political processes that have better information and greater democratic legitimacy, but that are subject to both majoritarian and minoritarian biases; and an adjudicatory process with less information, resources and democratic legitimacy, but that suppresses some of those biases, particularly through the independence and specialization of judges. 102
In a democratic context, there will normally be a presumption that politically controversial topics are best left to democratically legitimate bodies. And yet, from a comparative institutional perspective there may be situations where courts may be the preferable decision-making body, even if those situations will usually only arise extraordinarily—e.g. situations where the decision affects civil liberties and human rights (in particular situations concerning the prevention of outcomes which are morally intolerable for the relevant polity, or even for humanity as a whole), or where the protection of the integrity of the political process is at stake.
An important, yet subtle consideration which is relevant for any institutional comparative choice is the iterative relationship between the process through which the relevant bodies reach their decisions and the identification of the entity better suited to decide certain matters. The way courts construe constitutional rights will be relevant to the desirability of having them decide constitutional rights’ questions in the first place. This can be exemplified by reference to balancing and proportionality. While it may be considered a disadvantage that balancing and proportionality leave a wide margin for subjectivity, these legal techniques also acknowledge the existence of clashes of rights and recognize that there is no ready-made answer to them. 103 What is more, they provide discursive structures through which litigants can plead their cases and engage with their opponents’ arguments, and create a measure of predictability regarding how courts frame their decisions. 104 Proportionality in particular can be perceived as providing a regulated argumentative framework that assists courts in accommodating conflicting values in individual cases in a way that is acceptable to all participants. 105 Proportionality and balancing may lead to uncertainty, but they also have the advantage of allowing for the control of arbitrary and purely subjective decisions—and thereby providing a mechanism to ensure the (bounded) rationality of judgements. 106 It also allows interested parties to participate in a process of legal alchemy through which controversial, politically charged decisions are transformed into natural, unproblematic developments of previous legal practice. As has been noted:
(given a steady case load), fidelity on the part of the court to a particular framework will entrench that mode of argumentation as constitutional doctrine. To the extent that arguing outside of the framework is ineffective, skilled legal actors will use the framework, thereby reproducing and legitimizing it. 107
This may well be deemed a comparative institutional advantage of courts over other institutions—including democratic representative bodies—as decision-making loci. In certain cases, it might be preferable that the subjective value assessment inherent to some political decisions occurs under conditions that are subject to rational control and criticism: legal reasoning aspires to objectivity 108, and submits subjective decisions to a discursive practice restricted by a series of conditions, such as respect for the law, consideration for precedent, and other rules. 109 What is more, courts will usually be able to decide on the basis of the particular facts of a case without needing to engage with the large-scale societal questions underlying it. Courts may adopt incompletely theorized decisions that reflect the limited amount of societal consensus on the relevant topic. This mechanism is well suited to pluralist societies and an important source of social stability, allowing decisions to be reached on controversial topics without requiring the generalized imposition of certain value judgements with which the parties and segments of societies may strongly disagree. 110
In other words, judicial practice, the issue to be decided, and the relevant social, institutional and political environment are all relevant to the comparative institutional choice of whether courts should make the value choices implicit in constitutional rights’ adjudication. In particular, courts may be better placed to decide charged political questions if they do so within an operative and cognitive framework that recognizes such practice as legitimate—e.g. when courts are explicitly granted jurisdiction to decide such cases in the first place. Importantly, such operative and cognitive frameworks are usually time- and place-specific, which means that the relevant comparative institutional choice depends on the particular socio-legal context in which it occurs.
B How Should Courts Decide?
While context is crucial to determine whether courts should adjudicate on constitutional rights’ cases (and to identify which constitutional rights should be subject to judicial adjudication), it is also important to the way courts should decide cases.
Even if constitutional adjudication needs to decide between values that will often be incommensurate, this does not mean that there will be no sound reasons for courts’ decisions on questions involving those values. A first step in the analysis of a constitutional right is to look at its normative foundation, and identify the “good” that it seeks to protect. This is crucial not only in order to take the right seriously, but also to determine the normative content of specific constitutional rights. While this content may not be precisely defined, it will be limited to a number of normatively acceptable possibilities. 111 This leads us to a second step: if—as it is often the case—there are multiple normative bases for a constitutional right and there is no definitive answer as to which is to be preferred, consideration should be given to all legitimate normative bases—i.e. normative pluralism should be embraced. Accepting the existence of a plurality of justificatory arguments underpinning constitutional rights has the potential to strengthen those rights— because they will benefit from added normative justification(s). At the same time, this plurality of normative bases creates some space for courts to take into account the individual, cultural and legal considerations which may be relevant to the adjudication of individual cases. 112
A particularly relevant consideration regarding constitutional adjudication between multiple incommensurable values is that the absence of one right solution does not mean that one is unable to identify which solutions are wrong. Furthermore, while collisions between values cannot be avoided, deciding between them need not be irrational. 113 Monist, “one-right-answer” approaches necessarily rely on strong rationality. However, there are other (weaker) forms of rationality according to which an action is rational if it has not been ruled out by reason. 114 Similarly, there are mechanisms that, through bounded rationality, seek to deal with indeterminate and incommensurable choices. 115 The basic idea being advanced here is that, through reliance on partial rankings, limited agreements and comparative judgements, reasonable public choices can be reached via practical reasoning. 116 The reasons adopted in this respect may well be pragmatic, consequentialist, and time- and agent-bound. These reasons may apply at a particular point in time but lapse fairly quickly, apply in certain societies but not others, or be reasons for courts to interpret rights in a particular way that do not extend to other cases. In other words, the particular application of specific values included in constitutional rights may depend on aspects of the economic, social, and legal life of a country, or even on the particularities of individual cases. 117
Even if practical reason is unable to achieve a full commensuration of incommensurable things or to arrive at a single right solution, it can still hold the ring by disqualifying countless “solutions” as contrary to reason and wrong. 118 While issues of incommensurability remain, they can be circumvented—decisions can still be made, the same way one can choose between apples and oranges without much problem, even if the reasons for adopting these decisions will have to be pragmatic, and grounded on the institutional context and the nature of the decision-making process. Conflicts between values can thus be softened and managed in the light of specific contexts, particularly when a fragile balance that will avoid intolerable situations and choices can be reached.
In societies coherent enough to solve their problems peacefully, disagreements about incommensurable values will be contained within a framework of shared views: they will be instances of bounded disagreement that only make sense in a context of bounded pre-agreement according to which different people may legitimately stake opposing claims regarding certain matters. Importantly, in most contemporary Western societies, it is accepted that (some of) these disagreements can be addressed through rights’ adjudication. 119 Naturally, not every conceivable social disagreement can—let alone should—be solved this way. 120 In many cases (undoubtedly the greater part), rights’ adjudication will not be the best option to address these disagreements. Judicial deference on the grounds of lack of democratic legitimacy will usually be appropriate. 121
On the other hand, the alternative institutional options may be even less apt than courts; in extreme cases, there may be no way to arbitrate between different societal claims other than by a contest of force. Legal and political processes ultimately seek to stave of recourse to violence in the resolution of societal disputes. One way this has been pursued in Western political and legal culture is through the implementation of distancing devices for certain forms of decision-making—i.e. mechanisms for the settling of disputes in a way that is as independent as possible of the personal tastes of the relevant decision-makers. 122
These distancing mechanisms include not only the creation of neutral courts comprising impartial judges—with all inherent institutional protections against external influence and interference—but also distinct modes of legal reasoning. Even when facing situations with different legitimate solutions, judges are expected to invoke only those reasons that are recognized by law. 123 This explains why judges go to great lengths to ensure that legal reasoning with law-making consequences is usually similar to, and continuous with, decisions interpreting and applying law. 124 Even in cases where the reasons for choosing between different possible interpretations are incommensurate, reliance on formal legal reasoning can serve as a distancing device that legitimates court decisions before the relevant community. 125
It is a common understanding of a shared “story” about the contents and existence of a legal order that makes such a legal order authoritative within a community. Similarly, it is the obeisance to social practices and shared understandings by a legal community, which are in turn in accordance with a more general common understanding of what is legitimate law, that determines what judges can legitimately decide. 126 For courts to operate at all, every agent and organization participating in judicial processes must, in order for such participation to make sense, share in a common legal culture that provides the background for the participants’ cognitive frameworks.
The existence of these shared cognitive frameworks usually goes unremarked because it is unremarkable; it is part of what has been called the “tacit dimension”— propositions and opinions shared by a group and deemed so obvious that they are never fully articulated or systematized. 127 In the cognitive setting common to Western legal traditions, decisions are arrived at through deliberation and analogical reasoning, and presented as relatively redundant, self-evident, incremental extensions of available legal materials. Control of whether the relevant parameters of legal reasoning have been complied with in a legal decision is ensured by the interactive nature of law practice: ex-ante because cases are brought and argued before courts by lawyers trained and imbued in the spirit and grammar of a specific legal community; and ex post through systems of appeal, and the criticism from an interpretative community that recognizes a number of commonly accepted parameters as authoritative for the correctness of interpretation. 128 In this context, extra-legal considerations are, like background principles and values, mediated through the existent institutional setting and a common culture of legal reasoning. Such culture imposes standards—for example, of consistency and coherence with the contents of the relevant statutes and legal precedents—by which the correctness of legal interpretation is to be judged. Judicial decisions are not valid only because they are issued by a judge, but because they are issued by a judge within a specific setting in a duly reasoned manner which is accepted in the context of a specific legal order. 129
While recourse to certain modes of legal reasoning can be seen as an advantage for courts over other decision-makers when making the type of value choices inherent to rights’ adjudication, such an advantage can come with a cost— an increased perception of judicial interference in political processes, and a focus on the lack of (democratic) legitimacy of courts. 130
One way to address this is to abandon the pretense that legal reasoning about constitutional rights’ can lead to a single right solution. Instead, courts should focus on why they have been chosen to deal with conflicts of constitutional rights, and on the powers that such a choice grants them. Prudential reasons—including local and situation specific reasons—should be brought to the fore and given greater prominence. This should create a sense of judicial humility for rights’ adjudicators. Striving for reason but recognizing that subjectivity and discretion play their part, courts should reflect on their—and others’—limitations when adjudication constitutional rights’ cases. As Isaiah Berlin noted:
If there is only one solution to the puzzle, then the only problems are firstly how to find it, then how to realize it, and finally how to convert others to the solution by persuasion or by force. But if this is not so […], then the path is open to empiricism, pluralism, toleration, compromise. 131
If one takes value pluralism seriously, one must acknowledge that an objective and universal order of values underpinning constitutional rights either does not exist or is not accessible. Those few values that are globally and consensually accepted as truly fundamental may still be justifiably called “human rights”. Even in the context of universally acknowledged human rights, however, much will remain to be settled through appropriate collective decision-making procedures. While these procedures may not require a single necessary outcome to the balancing of constitutional rights, they are not procedures where values and reasons play no role—on the contrary, these are arenas where “weak” forms of reason prevail and where pluralism can flourish. 132
Given the lack of access to an objective moral order and the absence of purely objective decision-making procedures, constitutional theory can focus on the institutional context in which decisions between incompatible constitutional rights—or, more precisely, between the values underpinning such rights—must be made. The resolution of social disputes through rights’ adjudication, and the protection of certain fundamental values enshrined as judicially enforceable rights, is socially acceptable in the Western world because they build on a long intellectual and practical tradition of natural law and subjective rights. However, constitutional rights provide normative grounds that are too weak to ground a sense of community on their own, and are almost always insufficiently concrete to be fully policy-orienting. From a value pluralist perspective, while buying into the fiction of a single good society may seem to provide a way to avoid the tragedy of incompatible and contested goods, this is ultimately a myth. As none other than Rawls noted:
there is no social world without loss — that is, no social world that does not exclude some ways of life that realize in special ways certain fundamental values. By virtue of its culture and institutions, any society will prove uncongenial to some ways of life. 133
A further cost of embracing rights’ adjudication without acknowledging value pluralism may well be the judicialization and bureaucratization of politics, and the politicization of law. Ignoring that the content of constitutional rights is ultimately socially constructed allows for their instrumentalization in struggles for power by different groups and bodies who claim to have “right” on their side—and who will usually also claim that those who do not share their conception of the “good” are ignorant, ill-informed or just plain evil. Poorly used, constitutional rights can be tools of social fragmentation.
The benefits and costs of rights’ adjudication will ultimately need to be balanced on a case-by-case basis. Rights’ adjudication is merely one among a plurality of conflict-solving procedures and institutions through which political and social disputes are addressed. Courts may have a role to play in rights’ adjudication, but they also have a responsibility to understand the context in which they operate, the humility to allow for the possibility that some questions are best left to other decision-making bodies, and the wisdom to take (most) rights as legal-political argumentative stepping-stones in the exercise of practical reason.
Constitutional rights are ultimately like water—they can adapt to the institutional context in which they are applied, but they can also erode and sculpt that context. Properly deployed, constitutional rights can be sources of vitality and rejuvenation for the institutional recipients into which they are poured. As such, constitutional theory should pay attention to the specific institutional conditions in which constitutional rights can be appropriately deployed—and try to better understand the local conditions under which recourse to constitutional rights can either enliven political life or risk drowning it instead.