The received approach to the limitation of rights

Abstract

Introduction What has been the approach to the limitation of constitutional rights? How have the grand formulations with which all are familiar been translated in concrete cases? How, for example, has the guarantee of the right to life been implemented with respect to questions of abortion, euthanasia, and assisted suicide? Freedom of expression and pornography, hate speech, and libel? The right to vote and minimum age, residency, and the relationship of prisoners to the franchise? And how does the resolution of these debates correspond to the idea that the underdeterminacy of constitutional rights leaves the constitution open to re-negotiation? In order to determine whether any given activity is within an open-ended right's guarantee, the right must undergo a process of delimitation; its scope and content must be constructed. With the notable exception of the US Constitution, most domestic and international charters of rights make explicit the necessity for a process of limitation: they do so by way of a limitation clause that sets out the conditions according to which the limitation of a right will be assessed. These clauses are familiar to students of international instruments , such as the Universal Declaration of Human Rights, the European Convention on Human Rights, the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights; of domestic constitutions , such as the German Basic Law, the Canadian Charter of Rights and Freedoms, the South African Bill of Rights, and the Israeli Basic Law; and of statutory bills of rights , such as the British Human Rights Act, the New Zealand Bill of Rights, the Human Rights Act of the Australian Capital Territory, and the Charter of Human Rights and Responsibilities Act of the Australian state of Victoria.