The Legal Boundaries of Liberty: Dicey, Liberalism and Legal Science (original) (raw)
The relationship that exists between the law and civil liberties has characterized the development of the same idea of freedom. Whilst in the civil law countries, during the XIX century, the law was considered as the principal means in order to protect the liberties that liberal revolutions had affirmed, in United States the congress was thought as the first menace for individual freedoms. These two approaches illustrate a more general issue: the protection of civil rights needs at the same time two different and potentially contradictory conditions: a) The Legislator must actively contribute and adopt regulations that define the individual circle of liberty; b) The constitutional system has to control the legislator in order to prevent him from passing legislation that curtails individual freedoms. These needs directly impact the drafting of constitutional provisions that protect liberties and lead its evolution through the nineteenth and the twentieth centuries. Tihs essay investigates this topic firstly through an analysis of the main theories that legal scholarship developed during the last two centuries on the relationship that exists between law and freedom. Secondly, it analyses constitutional drafting in order to examine the concrete relationship that exists between law and liberties in some relevant constitutional experience, from the U.S. Bill of Rights to the EU Charter of fundamental rights.
Law, Liberalism, and the Common Good
2004
There is a tendency in contemporary jurisprudence to regard political authority and, more particularly, legal intervention in human affairs as having no justification unless it can be defended by what I shall call the principle of modern liberal autonomy (MLA). According to this principle, if consenting adults want to do something, unless it does specific harm to others here and now, the law has no business intervening. Harm to the self and general harm to society can constitute no justification for legal regulation or prohibition. So pervasive is this understanding of legal intervention in human affairs, that it is common now to encounter arguments in favour of permissive laws on, for example, private drug use, pornography, and sexual and reproductive choice, based on the idea that to intervene in these areas would constitute a breach of the liberal ideal.
The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United States Supreme Court had never done so, the same phrase could be also interpreted as protecting the positive liberty of individuals to engage in decent work, to enjoy general physical safety and welfare, and to be prepared for the duties of citizenship. Such a progressive interpretation, in fact, might be more in line with the overall purpose of the Reconstruction A...
The Law of Freedom: The Supreme Court and Democracy- Introduction
Cambridge University Press, 2023
This book addresses a puzzle about liberal democracy and rule of law: If democracy’s legitimating value is the autonomy of the people, how can an impartial court transform the terms of that autonomy? To address that puzzle, this book does two things. First, it frames and answers the question in philosophical terms. The dignity of democratic autonomy and the justice of rule of law neutrality are both essential for legitimate liberal democracy where the people rule but individual rights are respected. But in the context of electoral process, it creates a counterpopular dilemma: if courts dictate terms of elections, they intrude upon the extent of democratic autonomy. The best answer cannot solve this dilemma. It can only ameliorate it. The best approach is for courts to engage in ongoing contestation over the nature of freedom, directed toward what electoral procedures will best serve popular self-rule. Second, this book evaluates the American election law doctrine in light of this dilemma, and this answer. It shows how the Supreme Court’s transformation of democratic process has consisted of a long-running, fiercely contested debate over the ideal of popular autonomy. Moreover, this debate has settled into two opposed sides: a conservative view that advances a libertarian understanding of just elections and a progressive view that advances an egalitarian understanding. Conservative libertarians see elections as a means for converting private power and position into political representation. They wish to maintain elections as a zone of private power and reject both state action and judicial interpretation that intrudes upon private power. Progressive egalitarians see elections as an expression of the mutualist aspects of a democracy that aspires toward civic equality. They wish to use the bench to advance a vision of democracy as a shared space of rule by equals. This struggle over the meaning of freedom on the Supreme Court has shaped American democracy, and American life. The struggle reflects partisan allegiances, but it shows that deeper than the partisan divide is a philosophical dispute over the meaning of liberty. The Supreme Court’s battle shows a shared commitment to the ideal of liberty, as well as how deeply the different justices understand liberty, and how much these divergent understandings mean for American democracy.
2003
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Liberal politics and the judiciary: The supreme court and american democracy
Res Publica, 1997
In recent years, constitutional government has come to be identified largely with the judicial protection of individual rights. This characterisation of constitutionalism draws inspiration from both standard liberal concerns and the recent practice of the United States Supreme Court. Indeed, there has been a tendency amongst contemporary analytical American legal and political philosophers - most notably John Rawls and Ronald Dworkin and those influenced by, or critical of, their work - to conflate liberalism with the judgments of the Warren and Burger Courts. As a result, the philosophical treatment of a whole range of important social issues, from abortion and pornography, to racial and gender discrimination, has been framed to a remarkable degree by the concerns of American constitutional jurisprudence. Curiously, however, scholars outside America rarely have a direct knowledge of these landmark decisions or the reasoning underlying them. In consequence, a somewhat rarefied understanding of liberal principles and judicial decision making has emerged amongst many social and political philosophers, that rarely engages with the real contexts within which such ideals supposedly operate. It is the great merit of the books under review that in different ways they all seek to explore the actual theory and practice of the Supreme Court. In the process, they are led, albeit to varying extent, to critically examine the philosophical assumptions as well as the workings of the liberal interpretation of the American Constitution and its related view of democracy.