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Journal of Human Rights

, 7:139–173, 2008Copyright © Taylor & Francis Group, LLCISSN: 1475-4835 print / 1475-4843 onlineDOI: 10.1080/14754830802071950

Reconceiving Rights and Constitutionalism

JENNIFER NEDELSKY

I. Introduction

Human rights invoked in the international context are often treated as having self-evidentcontent. The focus is on implementation and enforcement. The urge to enforcement isespecially strong when people are suffering violence: the language of rights is invoked toinspire moral outrage and the will to intervene, to create a bulwark against governmenttyranny, or ethnic cleansing, or deeply embedded practices such as wife assault.This focus buries the highly contested nature of the meaning of the rights themselves.Rightsmustbedeﬁnedbeforetheycanbeprotected.

1

Inthisessay,Ihighlighttheproblemof howsuchdecisionsaremade.Iarguethatrightsarecollectivedecisionsabouttheimplemen-tationofcorevalues.Constitutionalrights,inparticular,arepartofa

dialogueofdemocraticaccountability

.Whentheyaresounderstood,itbecomesclearthattheideaofconstitutionalrightsas

trumps

(Dworkin1978)or

boundaries

(Nedelsky1990a)limitingdemocraticdeci-sion making is inadequate. I reject both metaphors, suggesting that a relational approach torights provides a useful framework for understanding and evaluating the collective choicesentailed both in constitutional rights and in the laws challenged as violating them.This essay thus takes up a core problem of constitutional rights: how they can simul-taneously function as a bulwark against illegitimate force

and

be understood as themselvesthe product of collective choice. This same problem arises (though in different institutionalform) in the context of international human rights. In taking up this puzzle, I make tworelated points. The ﬁrst is that all the inevitable decisions about rights are best analyzedin terms of the way rights structure relationships—of power, trust, responsibility etc.

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Thesecond is that the constitutional protection of rights is best understood as a dialogue of democratic responsibility. These points are separable, but they reinforce one another: a re-lational approach to rights requires a new conception of constitutionalism and my proposeddialogue of democratic accountability works best with a relational approach to rights.I should note at the outset that when I refer to constitutionalism, my focus will be onconstitutionalism as a means of protecting rights from violation by democratic decisionmaking—usually via judicial review.

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Although judicial review is only one part of theinstitutional structure by which governmental decision making is shaped—and indeed isonlyonepartofwhatmakesrightssecure—ithasbecomeanimportantpartofinternational

I would like to thank Candice Telfer for excellent research assistance. Part of this article isdrawn from “Reconceiving Rights as Relationship,”

Review of Constitutional Studies/Revue d’´ etudesconstitutional 1

(1993), 1–26.Address correspondence to Jennifer Nedelsky, 78 Queens Park, Faculty of Law, University of Toronto, Toronto ON M6G 2T3. E-mail: j.nedelsky@utoronto.ca

139

140 Jennifer Nedelsky

rights discourse, and a key project for countries trying to develop democratic institutionsconsistent with a respect for rights. Thus, it is constitutionalism as rights protection that Iwant to reconceptualize, rather than its fuller meaning as the structuring of governmentalinstitutions. (Although, as we will see, the reconceptualization invites new institutionalstructures).I begininthesecondsectionwithabriefcanvasofthedifferentcontextsinwhichrightsare invoked and introduce my relational approach to rights. In the third section, I take upthe core of my argument: rights are collective choices and constitutionalism must be refor-mulated accordingly. In the next section, I take up and respond to critiques of constitutionalrights and, more broadly, “rights talk,” arguing that a relational approach meets or mitigatesthese concerns. In the ﬁfth section, I provide examples of how a relational approach canhelpanalyzedebatesoverwhichrightsshouldbeconstitutionalizedandguideinterpretationof existing constitutional rights. I also offer my conception of the purpose of constitutionalrightsasstructuringrelationsofequalitynotonlybetweencitizenandstatebutalsobetweencitizens. The ﬁnal section presents a concrete proposal for a model of protecting socialand economic rights that is consistent with my picture of constitutionalism as a dialogue of democratic accountability. This model encourages a relational approach and demonstratesthe limits of the dominant court-centered understanding of rights and constitutionalism.

II. The Language of Rights and a Move to a Relational Approach

A. The Ubiquity of Rights

In the United States, the language of rights has long dominated both political debate andcasual conversation. Today, people throughout the world formulate their claims, concerns,andprotestsinthelanguageofrights.Institutionssuchasinternationalcriminalcourtsoper-ateonthebasisofclaimsaboutuniversalhumanrights(BradleyandPetro2002).Tragediessuch as the massacres in Rwanda are discussed in the language of rights, as are the debatesover when international intervention is appropriate. Virtually every state that has made atransition to democracy has created a constitution that outlines protected rights. In Europe,the European Convention for the Protection of Human Rights and Fundamental Freedoms(European Union 1950) recognizes rights, the Treaty on the European Union (EuropeanUnion 1992) makes membership conditional on their protection, and the European HumanRights Tribunal adjudicates claims of state violation.In short, the prevailing language of justice and entitlement is overwhelming that of

rights

. Thus in my view, the debate over the desirability of rights (as concept and legalinstitution) has, in practical terms, been decisively won by those who opt for the languageof rights. Despite the merits of the (ongoing) scholarly objections,

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the practical issue isnot

whether

but

how

the language of rights will be used. The best hope for meeting theconcerns of its opponents is to shift the understanding of rights—both what the term meansand how rights are best deﬁned and protected by state institutions. That is my projecthere.Rights are claimed in many contexts. Casually, such claims usually assert abstractentitlements rather than actual legal claims, as in “I have a right to my privacy” or “Ihave a right to my opinion.” In international human rights debates, rights claimants oftenrefer to rights outlined in international documents such as the United Nation’s

Universal Declaration of Human Rights

(United Nations 1948). There are also claims that there arerights that

should

be enshrined in such documents, as in the 25 year struggle to get the UN

Reconceiving Rights and Constitutionalism 141

to adopt the

Declaration on the Rights of Indigenous Peoples

(adopted in September 2007).Sometimes these arguments invoke claims that certain legal rights should follow from auniversal

moral

right, such as dignity or equality.When I use the term rights, I will be talking about legal rights. Some legal rights, suchas spousal rights to support or to a share of the matrimonial home, are created by legislativeenactment. Others, such as property and contractual rights, arise in common law

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countriesfromcourtrulings.InthisessayIfocusprimarilyonconstitutionalrights.Theseareinvokedeither to make broad claims of values or entitlement (“There is freedom of speech in thiscountry”) or to make legal claims to a right that the government cannot (ordinarily) violate,such as a right to privacy against government wiretapping.In all these contexts, there are debates over rights. My claim is that they are bestanalyzed in terms of the ways rights structure relationships.

B. A Relational Approach to Rights

The relational approach I propose (see also Minow (1990), Singer (1988, 2000), Koggle(1998) for relational approaches) has three steps. The ﬁrst is to examine the rights dispute(e.g., competing interpretations, advocating change in traditional meaning, debating whatthe list of constitutional rights should be) to determine what the values at stake are. Thesecond is to ask what kinds of relationships would foster those values. The third is todetermine how competing versions of a right would structure relations differently.The basic premise of this approach is that what rights do and have always done isconstruct relationships—of power, responsibility, trust, and obligation. The decisions abouthow the law

should

construct relations must be made on the basis of inquiry into thequestions listed above.In some cases, the value at stake will be obvious. In the debate over same sex marriage,it is clear that the values of equality and dignity are at stake for those arguing in its favor.The values at stake for the opponents are somewhat less clear and take various forms: thestabilityofsociety;thestabilityofaninstitution(marriage)thatlongpredatesourparticular legal and political arrangements and that is said to be essential for the well being of societyand its members; the collective norms of sexual morality and the importance of havingthe state reflect and support them. Highlighting this last issue may help people understandthe inevitable loss some people will feel when state support is withdrawn from the normsthey had seen as simply natural. The coercive power of the law to change the meaning of one’s social world becomes clearer (even if no one is coerced to participate in a same sexmarriage). Articulating the value of having the law mirror one’s understanding of socialreality (here the “normalness” of heterosexual marriage) highlights the fact that many of the most important social contests are over the form this sort of inevitable coercion shouldtake. (I return to this example in V, B.)Sometimes in technical legal debates over, say the scope of copyright protection or fiduciaryobligationsofcorporateCEOs,itisanimportantcontributiontothedebatetomakeclearer what the competing values at stake are. For example, the rules of copyright mayhave non-obvious implications for access to intellectual resources in developing countries.The obligation of CEOs to maximize profit may interfere with (or be so interpreted as tointerfere with) their capacity to take issues of social and environmental responsibility intoaccount in their decision-making.Once the relevant values are clear, it will be easier to move to the stage of deciding onwhat form of the legal rights (and obligations) in question will actually foster the values

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