Wilfrid J. Waluchow

This is a collection of essays based on papers read at a conference on freedom of expression held at McMaster University in May, 1990. Its contributors are philosophers and lawyers, each of whom brings his unique perspective to bear on issues surrounding the justification of free expression and the bases, both legal and moral, for restricting or broadening its scope. Joseph Magnet, Wayne Sumner, and James Weinstein discuss legal attempts in America and Canada to restrict hate literature, while David Richards brings a specifically American perspective to wider issues of free speech. Joseph Raz and Jan Narveson attempt to ground their theories of free speech in a wider political theory, while Leslie Green and Roger Shiner discuss more specific aspects of free expression, namely, the freedom to express oneself in the language of one's choice and freedom of commercial expression.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be putResumen:En este ensayo el autor defiende a H. L. A. Hart de dos críticas recurrentes a su teoría de las normas sociales y a las obligaciones que regularmente acompañan a estas normas. Ambas críticas, sostiene el autor, descansan sobre malos entendidos o caracterizaciones equivocadas de lo que Hart en realidad se propuso. Estos malentendidos son explicados plausiblemente a través de la falta de capacidad de los críticos de apreciar plenamente dos de las valiosas lecciones que Hart deseaba expresar en su lectura inaugural. En primer lugar, palabras como “norma” y “obligación” no deberían ser sacadas de sus distintos contextos de uso para someterlas a definiciones abstractas y al análisis filosófico. En segundo lugar, cuando se analizan enunciados en los cuales figuran tales palabras, tanto en la teoría como en la práctica del derecho, resulta primordial tener en mente las diversas funciones que esos enunciados puedan tener y los diferentes propósitos para los cuáles esos enunciados fueron proferidos.

In this paper, I defend H. L. A. Hart against two prevalent criticisms of his views on social rules and the obligations with which these rules are often associated. These criticisms, I argue, rely on misunderstandings ormischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like ‘rule’ and ‘obligation’ should not be removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in which such words figure in both legal practice and theory, it is crucial to bear in mind the different functions these assertions can be made to serve and the different purposes to which they can be put.

In this study, W. J. Waluchow argues that debates between defenders and critics of constitutional bills of rights presuppose that constitutions are more or less rigid entities. Within such a conception, constitutions aspire to establish stable, fixed points of agreement and pre-commitment, which defenders consider to be possible and desirable, while critics deem impossible and undesirable. Drawing on reflections about the nature of law, constitutions, the common law, and what it is to be a democratic representative, Waluchow urges a different theory of bills of rights that is flexible and adaptable. Adopting such a theory enables one not only to answer to critics' most serious challenges, but also to appreciate the role that a bill of rights, interpreted and enforced by unelected judges, can sensibly play in a constitutional democracy.

In this paper I defend constitutional review against the charge that it neces- sarily runs afoul of democratic principle. In so doing, I draw both on Dworkin’s theory of constructive interpretation as well as Raz’s theory of detached normative statements and reasoning from a point of view. After arguing that constructive interpretation can be undertaken from a point of view other than that of the interpreter, I go on to argue for the following claims: (1) Constitutional interpretation and review can be undertaken from the point of view of the democratic community and its constitutional morality; (2) This process can be undertaken by a judge without the deliberate intrusion of her own personal moral convictions; (3) When undertaken from this point of view, constitutional interpretation and review can be rendered consistent with democracy; and (4) This is so even when these activities require a good deal of substantive moral reasoning and argument on the part of judges.

In his rich and thoughtful paper, Richard Bellamy sketches a theory of individual rights that ascribes to them an inherently democratic character that “is best captured by a republican view of liberty as non-domination, rather than the standard liberal account of liberty as non-interference.” According to this view, “rights involve an implicit appeal to democratic forms of reasoning.” That is, the only justifiable “foundation of rights must be some form of ongoing democratic decision making that allows rights to be claimed under conditions of political equality.” Bellamy uses this particular model of rights to defend a somewhat unique thesis concerning the legitimacy of judicial review under a constitutional charter or bill of rights (henceforth constitutional review). Many legal theorists question whether constitutional review can ever be rendered consistent with the theoretical and practical demands of democracy. According to these theorists, democracy embodies a form of self-rule whereby the members of a society establish and exercise legitimate authority over themselves. But self-rule seems seriously compromised once constitutional review enters the picture. Instead of having the people and their elected representatives setting the basic terms of social cooperation, we have instead a small group of elite, unelected, and unaccountable judges performing this vital task. Constitutional review empowers these individuals, in constitutional review cases, to substitute their own contestable views and preferences with respect to the basic terms of social cooperation for the duly considered views and preferences of the people and those whom they have duly elected to represent them. This is something one simply cannot tolerate in a democracy.