Friday, October 22, 2010

Sen on Rights, Words, and Laws

For those interested in rights, constitutional and statutory interpretation, and jurisprudence, you might enjoy Amartya Sen's recent essay in The New Republic. It is titled "Rights, Words, and Laws: Constitutions and Their Motivations." Here are the opening paragraphs:

Words have meanings, often more than one. Many words also have evocative power and communicative reach that go well beyond the restricted use of these terms with well-defined professional delineation. In 1911, when Christabel Pankhurst asserted in a speech in London that “we are here to claim our right as women, not only to be free, but to fight for freedom,” adding that this is “our right as well as our duty,” she communicated a great deal. And she did so despite the difference between her use of the term “right” and any legal concept of “right” that could be sustained as a claim in any then-existing court of law. Women did not have the right to vote in Britain in 1911, nor would that right be achieved until seventeen years after Pankhurst’s speech, in 1928.

An immediate question that is raised by this duality concerns the connection, if any, between the two types of uses of the concept of rights—the one based on legal force and the other offering moral and political motivation. It would be odd if the two concepts resided in isolation in a totally separated universe. In fact they do not; but it is just as important to recognize that they reflect distinct notions of rights as it is to try to understand the connections between them. This plurality of meanings has been quite central, over several centuries, to debates on rights, and it is particularly important to see its relevance and its reach in understanding the nature and standing of what we now call “human rights.”
These paragraphs are a fair representation of what Sen discusses in the first Part of the essay, but the piece is in fact much broader. It goes on to explore, among other things, the "originalist" approach to constitutional interpretation and judicial consideration of foreign law.

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