Akanksha Chowdhury
Human rights can be defined as basic moral guarantees that all individuals in every country have just because they are human beings.[1] As affirmed by James Nickel, this global aspiration implies that different characteristics, such as nationality, race, sex, and religion, should be considered irrelevant in assessing whether an individual has certain fundamental rights.[2] This implies that human rights are fundamental to every person in the world. It is, therefore, plausible to assume that the protection of human rights should be a legitimate international concern and action.[3]
In Justice for Hedgehogs, Dworkin offers a theory of human rights that can be described as political and practice-dependent. For Dworkin, our theory of human rights should be the product of this moral judgment. It should propose criteria for classifying human rights that are not morally arbitrary: the criteria should be furnished by a moral value that we take to be genuine and appealing, independently of the practice. But at the same time, the candidate’s moral value must be such that it is pertinent to the actual practice of human rights, as opposed to some other real or hypothetical practice. In Dworkin’s familiar vocabulary from his earlier work, a theory of human rights is an interpretive theory, which must both ‘fit and justify’ existing practice.[4]
The European Convention on Human Rights and Fundamental Freedoms (hereinafter, referred to as ‘the Convention’ or ‘the ECHR’) is the longest standing international human rights convention, which established the first international judicial body for the protection of human rights, the European Court of Human Rights (hereinafter referred to as ‘the Court’ or ‘the ECtHR’). Since the Court’s work started in February 1959, it had delivered more than 23,406 judgments by the end of 2020.[5]It is worth highlighting that the Court can be considered as the world’s leading authority in the field of human rights law because its judgments are recognized as a source of reference, not only for national judicial bodies within the states of the Council of Europe but also for other national and international judicial systems.[6] The ECHR system has been defined as ‘the most effective system of international protection of human rights in existence’.[7]
DWORKIN’S RIGHTS AS TRUMPS
It can be said that Dworkin’s theory of rights has been highly influential among political and legal philosophers.[8] According to Kai Moller, for instance, there is probably no conceptualization of rights more popular than Dworkin’s theory of rights as ‘trumps’.[9] Besides, Dworkin is portrayed as a ‘champion’ of judicial activism.[10] Nevertheless, Dworkin’s expression that rights as trumps has been misinterpreted,[11] and found problematic in the context of the ECHR.[12]
Dworkin begins by saying that ‘rights are best understood as ‘trumps’ over some background justification for political decisions that states a goal for the community as a whole.[13] This, however, cannot imply that individual rights such as the right to freedom of religion, always ‘trump’ all other interests which clash with them.[14] As Waldron clarifies, Dworkin’s theory of rights is based on a conception of limits on the kinds of reason that the state can appropriately invoke to justify its action’.[15] This means that Dworkin’s account of rights as trumps should be considered as a theory that blocks political actions based on certain kinds of majoritarian justifications. Therefore, his conception of rights is known as a ‘reason blocking theory’.[16]
With this clarification in mind the notion of ‘rights as trumps’ should be understood only as a label of this conception. His theory of rights provides which justifications do not constitute legitimate reasons for depriving someone of liberty.[17]
Moreover, Dworkin makes a conceptual distinction between legal and political rights and, by doing so; he provides a constitutional framework for political rights.[18] As Moller clarifies, Dworkin uses ‘political’ rights to refer to ‘moral’ rights that should be protected as constitutional rights.[19] Dworkin explains: ‘the moral rights we have in mind are special because they are rights not against other people as individuals but governments, and I shall therefore refer to these special moral rights as political rights’.[20] In Dworkin’s sense, then, political rights have a special force and role, and thereby ought to be understood to what most constitutional theorists call ‘constitutional rights.
In this context, political rights are those (moral) rights that are not clearly outlined in a specific constitution; rather those rights require constitutional protection. While the usefulness of the term ‘trumps’ can be criticized because of its vague character, such a statement offers an insight into Dworkin’s notion of rights as trumps. As a preliminary matter, Dworkin makes a hierarchical distinction between fundamental and trivial interests. In other words, when Dworkin characterizes interests and rights, he accepts that certain interests are more fundamental than others because they protect more fundamental values, and therefore, such interests require specific (constitutional) protection.[21]
DWORKIN’S RIGHTS IN THE CONTEXT OF ECHR
Human Rights, according to Dworkin’s theory, are ‘special and very important kinds of political rights’.[22] They have special importance because they protect some individual interests, which are so vital and their normative force is not exhausted by their incorporation in the utilitarian calculation of the general interest.[23] These political rights, hence, ought to serve as trumps against ‘the kind of trade-off argument that normally justifies political action’.
According to Dworkin, then, people have a fundamental political right against the state; namely, a right to be treated with dignity. The upshot is that the protection of human dignity is considered a legitimate reason to block a policy, which seeks to maximize society’s overall best interests. In other words, interference with a person’s dignity cannot be justified for the sake of maximizing the community’s overall best interests. While the concept of human dignity is itself opaque and difficult to define, for Dworkin, it consists of two main principles: the principle of intrinsic value – which declares the intrinsic and equal importance of every human life, and the principle of personal autonomy – according to which each individual ‘has special responsibility for realizing the success of his own life, a responsibility that includes exercising his judgment about what kind of life would be successful for him.
In Dworkin’s view, the moral reading begins with the fact that the US constitution and most contemporary constitutions have provisions that contain abstract moral clauses, such as ‘rights’ or ‘equal protection.[24] It is possible to argue that Dworkin’s approach to constitutional interpretation may apply not only to the United States Constitution but also to similarly formulated and drafted constitutions.
According to Dworkin, the question of which rights are protected by the Constitution is a substantive moral question that should be justified based on political morality.[25] This suggests that under the moral reading, the task of judges is to ‘identify the general principles behind our constitutional rights and apply them to particular cases.[26] For Dworkin, then, legal reasoning cannot be separated from a moral or political argument. This then requires judges to find the best justification for their decisions in principles of political morality, such as justice, equality, and the rule of law.[27] Indeed, Dworkin reads the US Constitution as embodying two main principles, namely, the principle of equality and the principle of integrity.[28] These two principles, in Dworkinian terms, are derived from a fundamental right to equal concern and respect.
Importantly, Dworkin develops his argument for a moral reading on the premise that constitutional interpretation ought to be faithful to the normative concepts of the drafters. Most importantly, in the context of the ECHR, such normative concepts of the drafters should be identified in light of the object and purpose of the Convention. Since the ECHR is an international human rights treaty that is specifically designed to protect individuals’ human rights, its interpretation should be justified by the moral foundations of human rights.
One should, however, accept that the ECHR is not a constitutional document; rather it is an international treaty that was drafted by sovereign states. Nevertheless, the crucial feature to bear in mind is that the abstract moral language of the ECHR itself allows for an evolutive reading of the Convention’s rights.[29]
The role of the ECtHR judges is to interpret and apply the ECHR. Since the Convention is an international treaty, the primary sources for the Court are the rules of international law on the interpretation of treaties.[30] In other words, the Convention is subject to the rules of international law on the interpretation of treaties, codified in the Vienna Convention.
Dworkin, in the US constitutional context, argues that ‘abstract’ intentions should be regarded as more fundamental than ‘concrete’ intentions, and for this reason, an abstract intention must be considered as essentially relevant over a concrete intention when interpreting the intentions of drafters of the US constitution. In the context of the ECHR, the drafters’ intentions may come in for various purposes at different levels of abstraction:
Drafters in 1950 had an abstract intention to promote and safeguard human rights in Europe but they also had a more concrete intention about which situations, in their view, human rights cover.[31]
According to Dworkin, the meaning of a statute is never ‘fixed once and for all’ rather belongs to a ‘continuing story’, and its interpretation ‘therefore changes as the story develops.[32] As discussed above, the ECHR contains human rights protections that are abstractly formulated in general terms, such as ‘private and family life, ‘freedom of expression’, ‘freedom of thought, conscience and religion’, and so on. These concepts, according to Rudolf Bernhardt, are capable of different interpretations. It is worth noting that the Court has held repeatedly that the Convention is a living instrument, which should be interpreted in light of present-day conditions. Since its landmark judgment in Tyrer v United Kingdom[33], the Court has used an effective and evolutive method in interpreting the Convention.
According to Letsas, the Court’s use of evolutive interpretation can be understood as ‘it is more interested in the moral value the Convention rights serve and what arguments best support it rather than on whether such arguments are widely shared’ by the domestic legislation of the states belonging to the Council of Europe. [34] To discuss such a claim, this chapter combined Dworkin’s theory of rights with the moral reading. By doing so, this chapter established the Dworkinian interpretivism as a theoretical lens to analyze the Court’s case law. The Court’s approach towards the moral truth regarding the content of ECHR rights can be called the moral reading of the Convention.[35] Under the moral reading of the Convention, judges are entitled to set aside majority preferences in favor of an anti-majoritarian entails that and, more specifically, a liberal egalitarian reading of Convention rights.[36] This approach to the Convention’s rights ought to be considered as a shield to protect individuals and minorities from abuse of power by the majority.[37] For instance, the Court in Alekseyev v Russia[38] held that the pride marches might offend the moral values of the majority in Moscow. However, it considered that this was not a sufficient reason for banning those events. In the Court’s own words: ‘it would be incompatible with the underlying values of the Convention if the exercise of Convention rights by a minority group were made conditional on its being accepted by the majority.[39]
CONCLUSION
The use of Dworkin’s legal interpretivism to study the field of human rights in the European context of human rights law, such as the ECtHR, can be justified for several reasons. Dworkin’s theory of law has achieved significant standing in the philosophical theory of human rights for its distinctive anti-utilitarian character. One of the distinctive characteristics of Dworkin’s theory of law is that it includes moral judgments within legal arguments. In this view, the law is considered a social practice, which should be understood in light of its moral point. The Court’s interpretive ethic supports the view that the moral values underpinning the ECHR rights are objective.[40]
It is important to note that Dworkin’s legal theory developed considerably throughout his career and that it is still the subject of much scholarly discussion and disagreement. As a result, there is no commonly accepted single best description or interpretation of what Dworkinian thought stands for. Nevertheless, it might be true to say that in Law’s Empire, Dworkin provided his most consistent and comprehensive theory of law. According to Dworkin, the point of law can be best encapsulated as follows:
“Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.”
[1] James W Nickel, Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights (University of California Press, 1987).
[2] Supra 1.
[3] Supra 1.
[4] Ronald Dworkin, Law’s Empire (1986).
[5] European Court of Human Rights, Overview 1959-2020 (March 2020).
[6] Gonzalez-Salzberg, Sexuality and Transsexuality under the European Convention on Human Rights: A Queer Reading of Human Rights Law (n 2) 5.
[7] Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception to the Creation of a Permanent Court of Human Rights (Oxford University Press, 2010) 2.
[8] George Letsas, A Theory of Interpretation of the European Convention on Human Rights (Oxford University Press, 2007) Chapter 5; Kyritsis.
[9] Kai Moller, ‘Dworkin’s Theory of Rights in the Age of Proportionality’ (2018) 12 Law and Ethics of Human Rights.
[10]Kyritsis, Where Our Protection Lies: Separation of Powers and Constitutional Review (n 5) 182.
[11] See Jeremy Waldron, ‘Pildes on Dworkin’s Theory of Rights’ (2000) 29 Journal of Legal Studies 301. For a critical discussion on Dworkin’s theory of rights see Richard H Pildes, ‘Why Rights are not Trumps: Social Meaning, Expressive Harms, and Constitutionalism’ (1998) 27 Journal of Legal Studies 725.
[12] Andrew Legg, The Margin of Appreciation in International Human Rights Law (Oxford University Press, 2012) 51.
[13] Dworkin, A Matter Of Principle (n 6) 359; Dworkin, Taking Rights Seriously (n 3) 91.
[14] Supra 9.
[15] Waldron, ‘Pildes on Dworkin’s Theory of Rights’ (n 23) 307.
[16] Supra 8.
[17] George Letsas, ‘Rescuing Proportionality’ in Rowan Cruft, S Matthew Liao and Massimo Renzo (eds), Philosophical Foundations of Human Rights (Oxford University Press, 2015) 316-340, at 329.
[18] Ronald Dworkin, Is Democracy Possible Here? (Princeton University Press, 2008); Kyritsis, Shared Authority: Courts and Legislatures in Legal Theory (n 2) 101-107.
[19] Supra 9.
[20] Dworkin, Is Democracy Possible Here?.
[21] Ibid.
[22] Supra 20.
[23] Kyritsis, Where Our Protection Lies: Separation of Powers and Constitutional Review (n 5).
[24] Ibid..
[25]Supra 23.
[26]ibid .
[27]ibid .
[28] Roberto Gargarella, ‘The Constitution and Justice’, in Michael Rosenfeld and Andras Sajo (eds), The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012) 336-350, at 344; For a useful discussion of Dworkin’s theory of equality and liberty in the context of the ECHR, see Letsas, A theory of Interpretation of the European Convention on Human Rights (n 20) Chapter 5.
[29] Letsas, A Theory of Interpretation of the European Convention on Human Rights (n 20); Dimitrios Tsarapatsanis, ‘The Consensus Approach of the European Court of Human Rights as a rational response to complexity’ in Jamie Murray, Thomas E Webb and Steven Wheatley (eds), Complexity Theory and Law (Routledge, 2018) 111-128, at 114.
[30] Richard Gardiner, Treaty Interpretation, 2th edn (Oxford University Press, 2017) 120; See Bernadette Rainey, Elizabeth Wicks and Clare Ovey, The European Convention on Human Rights, 6th edn (Oxford University Press, 2014) 65; See also Vassilis P Tzevelekos, ‘The use of Article 31(3) of the VCLT in the Case Law of the ECtHR: An Effective Anti-Fragmentation Tool or a Selective Loophole for the Reinforcement of Human Rights Teleology’ (2010) 31 Michigan Journal of International Law 621.
[31] ibid.
[32] Dworkin, Law’s Empire (n 6) 348; See Steven Knapp and Walter Benn Michaels, ‘Intention, Identity and the Constitution: A response to David Hoy’ in Gregory Leyh (eds), Legal Hermeneutics: History, Theory, and Practice (University of California Press, 1992); See also Jeffrey Goldsworthy, ‘Dworkin as an Originalist’ (University of Minnesota Law School Constitutional Commentary, 2000); See also Stanley Fish, ‘Intentions is all there is: A Critical Analysis of Ahoran Barak’s Purposive Interpretation in Law’ (2008) 29 Cardozo Law Review 1109.
[33] Tyrer v United Kingdom, Series A no 26, 25 April 1978.
[34] Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (n 147) 528.
[35] ibid.
[36] Letsas, A Theory of Interpretation of the European Convention on Human Rights (n 20) Chapters 4, 5 and 6.
[37] In a similar vein, the Court has consistently held that ‘democracy does not simply mean that the views of the majority must always prevail: a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position’. See Young, James and Webster v United Kingdom (n 152) para 63; Sorensen and Rasmussen v Denmark, Applications nos 52562/99 and 52620/99, ECHR 2006 para 58.
[38] Alekseyev v Russia, Application nos 4916/07, 25924/08 and 14599/09, 21 October 2010.
[39]Alekseyev v Russia, Application nos 4916/07, 25924/08 and 14599/09, 21 October 2010, para 81.
[40] Ibid.
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