Introduction

Who should be responsible for determining and articulating the limitation of rights? The determination of a right's scope of content – its limitation – is the conclusion of a process of practical reasoning guided, but not wholly determined by reason. There remains, beyond the domain of reason, a creative aspect to constituting rights by limitation. And the exercise of this choice and judgment is important not only because choices last, but also because – indeed, choices last because – ‘creativity is also self-creative, self-determining, more or less self-constitutive’. The choices inherent in determining the limitation of a right sets a free and democratic society on a course and ‘into a new world’; one ‘more or less transforms oneself by making the choice, and by carrying it out, and by following it up with other free choices in line with it’. Who, then, should be responsible for making the self-constituting choices involved in constituting rights? Who should be responsible for limiting the rights underdetermined by the constitution?

The answer, it would seem, is all of us. The rights are our rights, the free and democratic society our society, such that both should be created in our image. The participation of all in the decision-making process is called for by the principles of political legitimacy. It will be remembered from Chapter 1 that the limitation of a constitutional right engages the political legitimacy of the State.