Specifying constitutional rights

Book review: The negotiable constitution: On the limitation of rights. Grégoire C.N. Webber. Cambridge University Press. 2009. Pp. viii + 231. Reviewed by John Oberdiek

What Do We Remedy?

This chapter examines the nature of civil wrongs from the perspective of the law of remedies, querying the supposition that remedies are exclusively responsive to primary rights violations and, in turn, the related supposition that a civil wrong is nothing more the violation of a primary right and correlative duty. Here, remedies correct for wrongs, but it is essential to recognize that the nature of a wrong—and, in turn, the selection of an apt or responsive remedy—is not driven exclusively by the nature of the right that was violated by the wrongdoer. This chapter’s analysis is framed as a critique of corrective justice theorists’ assertion of tight conceptual and normative connections between primary rights and duties on the one hand and remedies on the other. It argues that remedies are partly responsive to rights violations, and thus the ex ante positioning of the parties as a matter of right. But an expectation of responsiveness underdetermines choices between different kinds of remedies and those bearing on the quantum of relief to be afforded to a successful plaintiff

The morality of risking: On the normative foundations of risk regulation

Risk permeates people\u27s lives, and yet the normative dimensions of risk have been largely unexamined by philosophers. The nature and moral significance of risk and the standards governing morally permissible risking are all topics that are owed careful study. In this dissertation, I use the tools of moral and legal philosophy to explicate the morality of risking, focusing on institutional actors such as government agencies, which as a matter of course regulate risk. I begin, in the first chapter, by exploring whether there is an independent morality of risking at all, examining the special moral significance of risking. I argue that risk is not itself a form of harm, but that risking others nonetheless calls for moral justification because risking involves taking someone\u27s life into one\u27s own hands and having authority over someone else. If this is what risking\u27s moral significance rests on, however, it raises acute questions about the epistemic accessibility of moral norms, which I pursue in chapter two. I argue that if morality is to retain its inherent practicality, moral norms must not outstrip people\u27s reasonable epistemic reach. On this basis, I maintain that the moral significance of risking cannot be a transcendently objective matter. In the third chapter, I advance a non-consequentialist normative framework for risk regulation. I begin with a defense of a particular form of moral justification—justification to a subject—and argue further that this form of justification limits the kinds of considerations that risk regulators may appeal to in determining government policy. Heeding this personal reasons restriction, moreover, leads to a novel principle of regulation—intrapersonal aggregation. At the end of the third and throughout the fourth chapter, I explicate and defend intrapersonal aggregation in detail, contending that it offers a plausible alternative to the consequentialism that dominates risk regulation in current governmental practice. Finally, in the dissertation\u27s appendix, I compare and contrast the position I defend and the way that I argue for it with Scanlonian contractualism

The morality of risking: On the normative foundations of risk regulation

Risk permeates people\u27s lives, and yet the normative dimensions of risk have been largely unexamined by philosophers. The nature and moral significance of risk and the standards governing morally permissible risking are all topics that are owed careful study. In this dissertation, I use the tools of moral and legal philosophy to explicate the morality of risking, focusing on institutional actors such as government agencies, which as a matter of course regulate risk. I begin, in the first chapter, by exploring whether there is an independent morality of risking at all, examining the special moral significance of risking. I argue that risk is not itself a form of harm, but that risking others nonetheless calls for moral justification because risking involves taking someone\u27s life into one\u27s own hands and having authority over someone else. If this is what risking\u27s moral significance rests on, however, it raises acute questions about the epistemic accessibility of moral norms, which I pursue in chapter two. I argue that if morality is to retain its inherent practicality, moral norms must not outstrip people\u27s reasonable epistemic reach. On this basis, I maintain that the moral significance of risking cannot be a transcendently objective matter. In the third chapter, I advance a non-consequentialist normative framework for risk regulation. I begin with a defense of a particular form of moral justification—justification to a subject—and argue further that this form of justification limits the kinds of considerations that risk regulators may appeal to in determining government policy. Heeding this personal reasons restriction, moreover, leads to a novel principle of regulation—intrapersonal aggregation. At the end of the third and throughout the fourth chapter, I explicate and defend intrapersonal aggregation in detail, contending that it offers a plausible alternative to the consequentialism that dominates risk regulation in current governmental practice. Finally, in the dissertation\u27s appendix, I compare and contrast the position I defend and the way that I argue for it with Scanlonian contractualism

What Do We Remedy?

This chapter examines the nature of civil wrongs from the perspective of the law of remedies, querying the supposition that remedies are exclusively responsive to primary rights violations and, in turn, the related supposition that a civil wrong is nothing more the violation of a primary right and correlative duty. Here, remedies correct for wrongs, but it is essential to recognize that the nature of a wrong—and, in turn, the selection of an apt or responsive remedy—is not driven exclusively by the nature of the right that was violated by the wrongdoer. This chapter’s analysis is framed as a critique of corrective justice theorists’ assertion of tight conceptual and normative connections between primary rights and duties on the one hand and remedies on the other. It argues that remedies are partly responsive to rights violations, and thus the ex ante positioning of the parties as a matter of right. But an expectation of responsiveness underdetermines choices between different kinds of remedies and those bearing on the quantum of relief to be afforded to a successful plaintiff