Jeremy Waldron 's Rights Based Critique Of Constitutional Rights

1996 Words Jan 30th, 2015 8 Pages
Critically assess Jeremy Waldron’s ‘rights-based critique of constitutional rights’.

‘Standardly, a modern constitution is a set of norms that gives structure to a body politic and regulates the way it should be run, and which is not amended and repealed as easily as ordinary law’(Fabre, 2000). Despite the fact that many states enshrine rights in their constitution, and the move towards legal protection of universal human rights, Jeremy Waldron (1993) offers a criticism of this, arguing that by constitutionalising rights, people’s rights are being violated. He focuses particularly on how constitutionalising rights is in fact undemocratic. He offers four main arguments in support of this thesis: that the inferring of rights is not automatic, rights are not simple, the theory of authority and the question of who rules. This paper will critically analyse each of these in turn, to argue that although Waldron raises some thought provoking points, his claims are somewhat over exaggerated and problematizing where unnecessary.
Inferring Rights
‘Someone has a right if an interest he has is important enough to impose a duty, a liability, a disability and/or a lack of claim‐right on some other person(s)’(Fabre, 2000, p. 89). Waldron argues that possessing fundamental moral rights does not automatically lead to the formation of positive legal rights nor it is particularly imperative that they should. For example, parents may have a moral right to know if their children are getting…

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