Legislated Rights and Contemporary Constitutional Government

Abstract

Abstract: This reply, written for a symposium in (2020) 10 Jurisprudence on Legislated Rights: Securing Human Rights Through Legislation (Cambridge University Press 2018, pb 2019), engages with the careful, constructive, and critical challenges of Timothy Endicott, Dimitris Tsarapatsanis, and Lael Weis. Organised around the theme of the relevance of Legislated Rights for modern constitutional government, the reply explores four themes: (1) institutional analysis and the nature of rights; (2) the role of the executive in the legislature and beyond it; (3) the relationship between legislation, adjudication, and interpretation; and (4) the continuing relevance of Dworkin’s policy/principle dual-forum thesis, including among several proponents of weak-form, dialogic, or Commonwealth conceptions of judicial review.

Keywords: human rights, constitutional theory, separation of powers, the executive, legislatures, judicial review, Ronald Dworkin, weak-form review, Commonwealth constitution, constitutional dialogue