Webber, Grégoire C. N.
(2011)
Legal reasoning and Bills of Rights.
LSE law, society and economy working papers (01-2011).
Department of Law, London School of Economics and Political Science, London, UK.
Abstract
The ideal of the rule of law speaks differently to law-makers and law-appliers. The judge, being the legal official tasked with the application of law by the court, is not in the lawmaker’s position of choosing what, legally, ought to obtain, but rather is tasked with furthering, by administering, what, legally, already obtains. This demarcation of responsibilities rests on the ability of the law-maker to settle authoritatively moral-political questions in such a way as to render possible the artificial techne of legal reasoning. Bills of rights are unusual law-making acts insofar as they deliberately fail to settle moral-political questions under law by declining to specify the general right ‘P has the right to x’. How, then, have judges sought to satisfy their law-applying role in relation to disputed claims of rights? The approach shared by judges in Europe and much of the Commonwealth is to interpret the open-ended rights of bills of rights to include nearly all possible instances of conduct that could be related to the right, with the consequence that nearly all legislation, including legislative specifications of open-ended rights, could be held to infringe the bill of rights. In turn, the legality of legislation turns on judiciallycreated standards of proportionality and balancing, which lack the discipline afforded by technical legal reasoning. As a consequence, judges have assumed the function of law-makers, with all of the associated challenges to the rule of law when law-applying institutions make law in the very moment the legal subject is before them.
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