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In matters of rights, constitutions tend to avoid settling controversies. With few exceptions, rights are formulated in open-ended language, seeking consensus on an abstraction without purporting to resolve the many moral-political questions implicated by rights. The resulting view has been that rights extend everywhere but are everywhere infringed by legislation seeking to resolve the very moral-political questions the constitution seeks to avoid. The Negotiable Constitution challenges this view. Arguing that underspecified rights call for greater specification, Grégoire C. N. Webber draws on limitation clauses common to most bills of rights to develop a new understanding of the relationship between rights and legislation. The legislature is situated as a key constitutional actor tasked with completing the specification of constitutional rights. In turn, because the constitutional project is incomplete with regards to rights, it is open to being re-negotiated by legislation struggling with the very moral-political questions left underdetermined at the constitutional level.Read more
- Proposes an understanding of constitutional rights, which will appeal to those who are uncomfortable with the weaknesses of orthodox understandings of constitutional rights
- Interrogates the role and meaning of limitation clauses found in the European Convention and many bills of rights, and offers a way of looking at the issues
- Challenges the role of proportionality and balancing in resolving human-rights claims, providing valuable arguments for those who challenge their pervasiveness
Reviews & endorsements
"Webber offers an elegant and vigorous argument against what he takes to be the 'received approach' to the limitation of constitutional rights."
- Julian Rivers, Public Law
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"Webber offers … an ambitious reconceptualization of constitutions and their rights … his most fundamental positive thesis … is that constitutional rights are actually constituted by their accompanying limitations clause … the synthesis itself is indeed novel and, I think, a real contribution to the literature on constitutional theory …"
- John Oberdiek, Constitutional Commentary
"Webber's discussion of the limitation of rights comes with a more general theory of the constitution … It is, thus, a book of impressive breadth."
- Charles-Maxime Panaccio, International Journal of Constitutional Law
"Webber's book invites us to think about rights in new ways and is a welcome contribution to constitutional theory discourse."
- Dwight Newman, Alberta Law Review
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- Date Published: December 2009
- format: Hardback
- isbn: 9780521111232
- length: 240 pages
- dimensions: 235 x 158 x 17 mm
- weight: 0.5kg
- availability: Available
Table of Contents
Introduction: on the limitation of rights
1. The constitution as activity
2. The received approach to the limitation of rights
3. Challenging the age of balancing
4. Constituting rights by limitation
5. The democratic activity of limiting rights
6. Justifying rights in a free and democratic society
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