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Jennifer Nedelsky

Print publication date: 2012

Print ISBN-13: 9780195147964

Published to Oxford Scholarship Online: January 2012

DOI: 10.1093/acprof:oso/9780195147964.001.0001

Reconceiving Rights and Constitutionalism

Chapter:
(p.231) 6 Reconceiving Rights and Constitutionalism
Source:
Law's Relations
Author(s):

Jennifer Nedelsky

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780195147964.003.0007

Chapter 6 presents a relational approach to rights and a view of constitutionalism as a dialogue of democratic accountability, in which rights do not serve as “trumps.” Here rights are a form of collective choice, different from the collective choices of legislatures, but collective choices nonetheless. These changes in the conceptions of rights and constitutionalism allow for the necessary recognition of the contingent and contested nature of legal rights. This recognition need not, however, undermine the capacity of rights to serve as standards for the legitimacy of governmental action. That legitimacy will be assessed through a “dialogue of democratic accountability.” This approach to rights mitigates some of the most persistent critiques of rights. And the “dialogue of democratic accountability” model avoids the kind of democratic critiques that the American model of rights as trumps generates. There are examples of how a relational approach can help guide debates about which rights should be constitutionalized and about the interpretation of existing constitutional rights. Finally, there is an alternative institutional model that encourages a relational approach and highlights the limits of the dominant court-centered understanding of rights and constitutionalism

Keywords:   rights, constitutionalism, democracy, rights as “trumps”, judicial review

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