Rights, Laws and Language: Amartya Sen

Oxford Journal of Legal Studies, Vol. 31, No. 3 (2011), pp.
437–453
doi:10.1093/ojls/gqr012
Rights, Laws and Language
Downloaded from https://academic.oup.com/ojls/article/31/3/437/1394859 by Università degli Studi di Genova user on 09 June 2022
AMARTYA SEN*
Abstract—Words have meanings, often more than one. Many words also have
evocative power and communicative reach. It is important to look beyond the
legal route in making human rights more effective, and to endorse but proceed
beyond human rights being seen as motivation only for legislation (the particular
connection on which Herbert Hart commented). Within the legal route itself there
is the important issue of interpretation of law that can stretch beyond the domain
of fresh legislation. In assessing the ‘originalist’ disciplines of legal interpretation,
the article discusses the distinction between interpreting the original text in terms
of changing linguistic conventions (on which some commentators have focused)
and taking note of public reasoning today in the light of the original ‘constitutional
motivation’.
Keywords: human rights, rules of language, words and meanings, originalism,

constitutional motivation
1. Introduction
I feel very fortunate in having this opportunity of talking today in memory of
Herbert Hart. I have drawn on Hart’s ideas for many years and have also
valued the encouragement and affection I always received from him. Hart was a
far-reaching social thinker in addition to being one of the outstanding legal and
political philosophers of our time, and he taught us a great deal about how
these distinct disciplines interrelate. As will be clear from what I will try to say
in this talk, I have been much influenced by the broad perspective on legal and
political philosophy that Herbert Hart presented to us.
* Lamont University Professor, and Professor of Economics and Philosophy, at Harvard University. Email:
asen@fas.harvard.edu. I have greatly benefitted from discussions with, and suggestions from, Bernard Bailyn,
Stephen Breyer, Charles Fried, Joseph Raz, Emma Rothschild, Stephen Sedley and Leon Wieseltier. I am also
most grateful for wonderful editorial assistance from Aditya Balasubramanian and Laura Bennett. This is an
extended version of my HLA Hart Memorial Lecture given on 17 May 2010.
ß The Author 2011. Published by Oxford University Press. All rights reserved. For permissions,
please e-mail: journals.permissions@oup.com
438 Oxford Journal of Legal Studies VOL. 31
2. Words and Rights

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.1 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 17 years after Pankhurst’s speech, in 1928 (its exercise would
begin in the following year).
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’.
There are also other issues that connect the understanding of rights to
language. There is the question of the interpretation of laws and of constitutions,
since words mediate our understanding of how past decisions may bind us
today and what should be done here and now. Words cannot but be central to
legal debates as well as moral ones. And yet, as Samuel Johnson noted in
the preface to A Dictionary of the English Language, ‘Language is only the
instrument of science, and words are but the signs of ideas’. He also noted that
these ‘instruments’ are ‘apt to decay’.2
Across the Atlantic, the discipline of the attribution of meaning is integrally
relevant to some of the pressing American debates on legal understanding,
including the crucial question of the interpretation of the American
Constitution. It has a close bearing, for example, on the plausibility and
reach of what is called ‘originalism’, a powerful approach to constitutional
understanding pursued in varying forms by Robert Bork, Antonin Scalia and
Steven G Calabresi, among others. I will argue that it is hard not to be an
‘originalist’ in some sense, in applying an already existing written constitu-
tion—and yet that recognition still leaves open important decisions about what
1
Christabel Pankhurst, ‘Votes for Women’ (Women’s Social and Political Union, London, 31 March 1911).
2
Samuel Johnson, A Dictionary of the English Language (J Mifflin 1777) Preface.
AUTUMN 2011 Rights, Laws and Language 439
exactly of the original enterprise needs to be preserved: the language used,
or the intentions underlying it, or what we might call its ‘constitutional
motivation’ (an issue which I will discuss presently).
It is important to understand in this context the philosophical engagement
about social organization that occurred during the European Enlightenment—
the period in which the American constitution, which was directly influenced
by it, also had its origin. Indeed, I would argue that attempts to see the
American constitution in a way that is detached from its Enlightenment origin
can be seriously incomplete in judging the reach of that constitution (including
its amendments).
In ‘Anarchical Fallacies’ in 1791–92, Jeremy Bentham issued a hugely
obdurate attack on the idea of what we would today call ‘human rights’.3
Bentham was denouncing the French declaration of ‘the rights of man’ in
1789. He dismissed the French claim that men and women had some ‘natural
rights’. He argued that the idea of natural rights was ‘simple nonsense’, going
on to describe ‘natural and imprescriptible rights’ as ‘rhetorical nonsense—
nonsense upon stilts’. In dismissing in this way the very idea of any kind of
pre-legal human rights, Bentham would have found Christabel Pankhurst’s
speech as no more than heaps and heaps of ‘simple nonsense’.
Bentham explained his position thus: ‘Right, the substantive right, is the child
of law: from real laws come real rights; but from imaginary laws, from law of
nature’, can come, he insisted, only ‘imaginary rights’.4 It is easy to see that
Bentham’s rejection of the idea of the natural ‘rights of man’ depends entirely
on his insistence on a legal authorization for the use of the term ‘rights’. And
yet, even as Bentham was presenting his no-nonsense repudiation, the idea that
some rights precede—or even transcend—legislation was being pursued with
much insight and force of thought by such pioneering social thinkers as
Thomas Paine in Rights of Man and Mary Wollstonecraft in A Vindication of the
Rights of Men and A Vindication of the Rights of Woman.5
3. The Status of Human Rights

The impasse between the different meanings is important to recognize, since
the idea of human rights is such an important area of social thought and action
today. To avoid any confusion, we must note the fact that there are areas of
3
Jeremy Bentham, ‘Anarchical Fallacies; Being an Examination of the Declaration of Rights Issued during the
French Revolution’ (1792) republished in J Bowring (ed), The Works of Jeremy Bentham, vol II (William Tait
1838–43).
4
ibid, ‘A Critical Examination of the Declaration of Rights’, Conclusion.
5
Thomas Paine, The Rights of Man: Being an Answer to Mr. Burke’s Attack on the French Revolution
(London-Derry 1791); The Rights of Man, Part the second, Combining Principle and Practice (JS Jordan 1792); Mary
Wollstonecraft, A Vindication of the Rights of Woman (first published 1792, Penguin 1985); Mary Wollstonecraft,
‘A Vindication of the Rights of Men, in a Letter to the Right Honourable Edmund Burke Occasioned by His
Reflections on the Revolution in France’ (1790) in Mary Wollstonecraft, A Vindication of the Rights of Man and A
Vindication of the Right of Women (Sylvana Tomaselli ed, CUP 1995) 13.
legislation that are described as being about ‘human rights’, and many countries
have laws that are called ‘human rights laws’, but the term ‘human rights’ is
not confined in ordinary discourse to already legislated rights.
In an insightful essay called ‘Are There Any Natural Rights?’ which appeared
in 1955, the great legal philosopher HLA Hart argued that people ‘speak
of their moral rights mainly when advocating their incorporation in a legal
system’.6 Hart went on to add that
the concept of a right belongs to that branch of morality which is specifically con-
cerned to determine when one person’s freedom may be limited by another’s and so
to determine what actions may appropriately be made the subject of coercive legal
rules.7
Rather than seeing rights, as Bentham had, as a ‘child of law’, Hart’s view
takes the form, in effect, of seeing natural rights (including what we now call
human rights) as ‘parents of law’.8
Generating arguments and inspirations for legislation is certainly one way in
which the ethical and political force of human rights has been constructively
deployed, and Hart’s illuminating defense of the idea and the usefulness of
human rights in this specific context is powerfully explanatory. Many states,
and also associations of states, have proceeded to give legal force to certain
rights seen as important human rights on the basis of the public recognition of
them. The Universal Declaration of Human Rights in 1948, promulgated by
the newly established United Nations, was seen by its sponsors, particularly
Eleanor Roosevelt, as a template for actual legislation to be taken on board by
individual states.9 And to some extent that has actually happened.10
There have been many efforts drawing on this—and other—sources of
inspiration. The European Court of Human Rights, which was established in
1950 following the European Convention for the Protection of Human Rights
and Fundamental Freedoms, has been empowered to consider cases brought
by individuals from the signatory states against violations of human rights. This
has been supplemented in the UK by the Human Rights Act 1998, aimed at
incorporating the main provisions of the European Convention into domestic
law, with a supervisory role of the European Court to see ‘just satisfaction’ of
these provisions in domestic judgments.
6
HLA Hart, ‘Are There Any Natural Rights?’ [1955] 64 Phil Rev 175, 177, reprinted in Jeremy Waldron
(ed), Theories of Rights (OUP 1984) 79.
7
ibid. On related issues, see also HLA Hart’s Punishment and Responsibility: Essays in the Philosophy of Law
(OUP 1968).
8
This understanding is, in fact, in line with the American Declaration of Independence, which made the
rights to be legislated derivative on what were seen as ‘inalienable rights’ shared by all human beings.
9
See Mary Ann Glendon’s definitive account of that remarkable history, A World Made New: Eleanor
Roosevelt and the Universal Declaration of Human Rights (Random House 2001).
10
I have discussed the far-reaching impact of the Universal Declaration of Human Rights in ‘The Power of a
Declaration’ (2009) 240 New Republic <www.tnr.com/article/books/the-power-declaration> accessed 1 April
2011.
4. Human Rights and Legal Rights

There is no doubt that Hart’s clarification was helpful in breaking up—as the
police say—a needless brawl, in which Bentham’s voice, insisting on a restricted
use of the word ‘rights’ only in the legal sense, was high and mighty in
chastising dissenters, and in trying to prohibit any different use of the term
‘rights’. And yet Hart’s resolution leaves open certain big questions that must
also be addressed.
There is the question, first of all, of the interpretation of ‘natural’ in what
can be called ‘natural rights’. The claim to a right being ‘natural’ need not take
the form that it is ideally legislated into the statute book everywhere on the
ground that this is a ‘natural’ entitlement irrespective of social conditions. The
appropriateness of legislation may strongly depend on contingent social
circumstance. The demand for law on this line need not have much to do
with trying to replicate what would hold in some imagined ‘state of nature’.
For example, if some residents are arbitrarily excluded from being covered by
public health care or from having state-sponsored medical insurance that others
already have in the existing structure of public institutions, the moral and
political demand in contention has to be seen in the specific context of the
institutional arrangements that exist in that society, from which some are
unjustifiably excluded. The issue of discrimination is directly involved also in
Christabel Pankhurst’s demand that women should have voting rights since
men already had such rights. As John Tasioulas has argued in an illuminating
essay called ‘The Moral Reality of Human Rights’:
human rights enjoy a temporally-constrained form of universality, so that the question
concerning which human rights exist can only be determined within some specified
historical context.11
Hart’s claim is consistent with this understanding. He was not arguing that
the ground for something to be legislated into the statute book is that it is in
some pre-existing sense a ‘natural’ right, but rather that ‘advocating their
incorporation in a legal system’ can be part of what we understand by the
declaration of a ‘natural right’ or a ‘moral right’, no matter how that normative
judgment is arrived at. The meaning of ‘rights’ in the moral sense must include
this interpretation of the word—as the existence of a corresponding moral
claim. The exact ground for such a moral claim is a separate issue from the
existence of the moral claim.
A further issue that Hart’s clarification keeps open concerns the complete-
ness, as opposed to the relevance (which is clear enough) of the ‘parents of law’
view of human rights seen in moral or political terms. To acknowledge that the
recognition of human rights can be aimed at fresh legislation to give legal status
11
John Tasioulas, ‘The Moral Reality of Human Rights’ in Thomas Pogge (ed), Freedom from Poverty as a
Human Right: Who Owes What to the Very Poor (OUP 2007) 76.
to those rights is not the same thing as taking the use of human rights to lie
exclusively in determining what should ‘appropriately be made the subject of
coercive legal rules’ (in Hart’s words).12 If the case for new laws arises from
moral or political priorities to which legislation should cater, should not those
same values be pursued, if feasible, also by means other than legislation?
Thus, social monitoring and other activist support provided by such organ-
izations as Human Rights Watch, Amnesty International, Oxfam, Doctors
Without Borders, Save the Children, Red Cross or ActionAid (to consider
many different types of NGOs) can themselves help to advance the effective-
ness of acknowledged human rights. In many contexts, legislation may not
be at all involved. Public exposure and condemnation can play a huge role in
preventing violations of what are widely acknowledged to be moral rights of
others (as I have discussed elsewhere).13
Let me give a particular example. Unlike the Human Rights Commissions in
India and in South Africa, which are accorded a secure legal standing in their
respective countries, the Human Rights Commission of Pakistan is merely an
NGO. And yet thanks to the inspired and skilful use of public information and
agitation (under the visionary leadership of Asma Jahangir and IA Rehman,
among others) the commission in Pakistan has had quite a substantial effect
in securing the respect of the basic civic and social claims of many people in
Pakistan. Many Pakistani citizens, along with others elsewhere, may wish that
the idea of human rights had an even greater effect on what has been
happening there, but it would be a big mistake to deny the serious influence
that it does actually possess, despite the very adverse circumstances. Public
knowledge and informed discussion can play a huge role in making people
think about the freedom of others and about the unacceptability of violating
their human rights.14
Indeed, it was the secretly videotaped film of the public flogging of a young
woman in the Taliban-controlled Swat district, for some alleged transgression
in the eyes of the Taliban, that outraged Pakistani civil society and provoked it
to take an active interest in preventing such abuse. And it was this awakened
social interest related to information coming through the media that paved the
way for the long-delayed decision by the Pakistani military to launch an
operation to remove the Pakistani Taliban from the Swat Valley. There was no
new legislation, nor any legal change through any other means (such as legal
interpretation), and yet the realization of the human rights of the people
involved was significantly promoted by the Pakistani human rights movement
through non-legislative activities.
12
Hart (n 7) 177.
13
Amartya Sen, ‘Elements of a Theory of Human Rights’ (2004) 32 Philos Public Aff 315; and ‘Human
Rights and the Limits of Law’ (2006) 27 Cardozo LJ 2913.
14
For a good discussion of some of these supportive activities, see Human Rights Commission of Pakistan,
State of Human Rights in 2001 (March 2002).
This also raises an interesting question about the ideal domain of the
legislative route. It is sometimes presumed that if an unlegislated human right
is important, then it would be ideal to try to legislate that human right into a
precisely specified legal right. This is, in fact, a non sequitur, since legislation is
neither the only way of advancing human rights, nor is it necessarily the best
way of going about it. For example, recognizing and defending a wife’s right to
have an effective voice in family decisions, often denied in male-dominated
traditional societies, may well be extremely important, and may be widely
recognized as such.15 And yet the advocates of this right, who emphasize,
correctly, its far-reaching ethical and political relevance, can plausibly agree
that it is not sensible to make this human right into a ‘coercive legal rule’ in
one form or another—say, by taking the non-consulting husband into custody
for his lapse. The required changes would have to be brought about in other
ways, by means of social criticism as well as public debates and agitation. This
recognition would not have come as a surprise to Mary Wollstonecraft, who
already in 1792 discussed a variety of different ways in which the realization of
women’s rights could be advanced.16
5. Legal Interpretation and the Law

If it is important to look beyond the legal route in making human rights more
effective, there is also the important issue of identifying the nature and the
scope of the legal route itself, since it need not always involve fresh legislation.
The reach of law also depends on the interpretation of existing laws. The legal
route of incorporating considerations of human rights that come to carry
political conviction may not invariably involve new legislation.
There is, understandably, considerable debate on how much discretion
judges should have in order to bring about changes in the application of
existing laws through the legal interpretations reflected in their judgments.
There have been serious arguments presented by judges as well as legal
theorists for making more room for the ‘here and now’ in legal decisions in the
contemporary world. Justice Stephen Breyer has powerfully argued, in Active
Liberty: Interpreting Our Democratic Constitution, in favour of paying attention to
‘the purpose and consequence’ of existing laws, including constitutional
provisions, in interpreting the laws.17
On the other side, the school of legal thought known as ‘originalism’ insists
that the original content of the constitution must be preserved, thereby firmly
constraining the liberty that can be taken in contemporary judicial decisions.
15
On the importance of this entitlement for women, see Amartya Sen, Development as Freedom (OUP 1999)
ch 8 and 9.
16
Wollstonecraft, A Vindication of the Rights of Man and A Vindication of the Right of Women (n 6).
17
Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Knopf 2005). See also Stephen
Breyer, Making Our Democracy Work: A Judge’s View (Knopf 2010).
Justice Antonin Scalia of the US Supreme Court has famously articulated

his insistence on this requirement, along with his unconcealed frustration at
departures from originalism, denouncing something that he calls the philoso-
phy of the ‘living Constitution’, which he sees as a counterpoint to the
originalist philosophy. I quote from Justice Scalia:
The interpretive philosophy of the ‘living Constitution’—a document whose meaning
changes to suit the times, as the Supreme Court sees the times—continues to pre-
dominate in the courts, and in the law schools. Indeed, it even predominates in
the perception of the ordinary citizen, who has come to believe that what he violently
abhors must be unconstitutional. It is no easy task to wean the public, the professori-
ate, and (especially) the judiciary away from such a seductive and judge-empowering
philosophy.18
The case for restraining judges has been sharply expressed also by Steven
G Calabresi, a leading legal philosopher. In his influential book Originalism:
A Quarter-Century of Debate, he argues:
Why on Earth should the citizens of a democracy allow a committee of unelected
lawyers to make binding rules on the most sensitive issues of morality and religion on
a five-to-four vote based on their own personal moral and religious beliefs?19
There is, clearly, much force in this argument, but the moral and religious
beliefs of judges are not the only possible source of resourceful departure in the
interpretation of law. We have to ask whether contemporary public reasoning
and the understanding generated by it can or cannot be accepted as a
legitimate influence in legal interpretation. Calabresi’s exclusion does not close
the door to such influence, though we have to be clear about how such
influence may be legitimately allowed. The issue in this context is not whether
the judges should be capriciously free to insert their own personal beliefs, but
whether a new public recognition of the appropriateness of some putative legal
rights should not be reflected in contemporary legal judgments. What room is
there for moving with the times, particularly since the world that the framers of
the Constitution faced was so very different from the contemporary world?
It involved the acceptance of many practices that would be seen today as totally
unjust, and even as strange, such as slavery and the exclusion of women from
the electoral process.
The discipline of interpreting the Constitution clearly has to be a part of the
specification of any ‘originalist’ approach. This was importantly delineated by
the ‘intellectual godfather of originalism’ (Calabresi’s phrase), Robert H Bork.
The views that Bork presents include the insistence that the judges today must
‘interpret the [Constitution’s] words according to the intentions of those who
18
Antonin Scalia, ‘Foreword’ in Steven G Calabresi (ed), Originalism: A Quarter-Century of Debate (Regnery
Publishing 2007) 43.
19
Steven G Calabresi (ed), Originalism: A Quarter-Century of Debate (Regnery Publishing 2007) 26.
drafted, proposed, and ratified’ them.20 Yet, giving the intentions of the framers
of the Constitution an unassailable status is neither the only way originalism
can be understood—nor, it has been argued, is it particularly plausible. As
Calabresi puts it,
The original public meaning of the Constitution’s words as revealed in old
dictionaries is certainly law, but there is no reason to think that the un-enacted,
idiosyncratic intentions of particular framers are law.21
6. Words, Intentions and Motivation

The dangers of idiosyncrasy are easy to appreciate, but the priority of words
over intentions, as championed by Calabresi, surely calls for further scrutiny.
The Constitution can speak to us today in three different ways: (i) through the
motivation behind the rules of the kind that the framers sought in order to
make it possible for people with different interests and divergent views to live
and prosper together; (ii) through the specific intentions that the individuals
who drafted, proposed and ratified the Constitution entertained, overtly or
covertly; or (iii) through the words that the drafters used to translate their
constitutional motivation into specific rules. In undermining—plausibly
enough—the adequacy of the second route, Calabresi demands that we have
to concentrate on the last route—a rich and powerful approach that I will
presently scrutinize. But is it really so odd to consider seriously the motivation,
or the general intention, behind the Constitution and behind the words that
were chosen, rather than only the words themselves (bearing in mind what
Dr Johnson, the great lexicographer, rightly diagnosed: that words are no more
than ‘signs of ideas’ and that, among other problems, these ‘signs’ are ‘apt to
decay’)?
Motivation is not, of course, the same thing as the specific intentions of
particular framers. Calabresi is surely right to be sceptical of making everything
turn on something that can be quite psychological—and peculiarly personal.
But behind the framers’ intentions there was, surely, a social vision of
constitutional appropriateness, which would make room for people with
divergent interests and values to live together (protecting in particular ‘the
individual’s integrity and inherent dignity’, as Bernard Bailyn, the leading
historian of the American Revolution, puts it).22 This enabling vision may be
20
Robert H Bork, ‘The Constitution, Original Intent, and Economic Rights’ (1986) 23 San Diego L Rev
823, 826.
21
Calabresi (n 19) 29.
22
See Bernard Bailyn, ‘The Living Past – Commitments for the Future’ (Millennium Lecture delivered at the
White House, Washington DC, 11 February 1998) available as ‘Remarks by Bernard Bailyn’ <http://clinton4
.nara.gov/Initiatives/Millennium/bbailyn.html> accessed 1 April 2011. See also Bernard Bailyn (ed), Pamphlets of
the American Revolution, 1750-1776 (Harvard University Press 1965); The Ideological Origins of the American
Revolution (Harvard University Press 1967); and Faces of Revolution: Personalities and Themes in the Struggle for
American Independence (Knopf 1990).
called ‘the constitutional motivation’, and it could even be seen, without

straining our imagination a great deal, as reflecting something like the
‘intention’ of the Constitution.
The identification of an appropriate constitutional motivation was a central
political exercise in the European Enlightenment, at a time when the American
constitution was also crafted; and this enterprise engaged exponents of social
contract theory (such as Hobbes, Rousseau and Kant) as well as theorists
of ‘social choice’ (such as Condorcet and Adam Smith). These political
explorations have been continued in our own time, in diverse ways, by such
writers as John Rawls, Kenneth Arrow, James Buchanan, Jürgen Habermas,
Ronald Dworkin, Bruce Ackerman, Joseph Raz and others, and can still be
pursued substantially further (as is discussed in my book The Idea of Justice).23
Something more than just the words and the phrases of the Constitution must
surely be involved in understanding the motivation behind a democratic and
participatory constitution that tries to create a legitimate space for different
types of people with varying preoccupations and circumstances in a diverse
society.
In presenting his own version of originalism, Calabresi flexibly allows
for using today’s understanding of the words that are already there in the
Constitution:
The meaning of these words and their application to present-day problems depends,
in the end, on what the American people think they mean acting over a long period of
time through our three-branch process of constitutional interpretation.24
It is useful here to take note of the philosophical understanding, clarified in
particular by Wittgenstein, that the meaning of words has to be seen in terms
of the ‘rules’ that govern their use.25 What we have in the form of a
constitution is a collection of words, and we can, plausibly enough, treat the
words as the ‘fixed point’, but take note of the varying meanings of these words
over time, reflected in the varying rules governing their use. Calabresi’s version
of originalism would allow the use of the ongoing contemporary understand-
ing—reflected in the current rules governing the use—of those words. We may
have to understand the same words differently as the linguistic conventions—
the rules for the use of words, in the Wittgensteinian sense—actually alter over
time.
The primacy of texts, using contemporary interpretation of the words and
linguistic conventions, would allow a good deal of the ‘here and now’ within
the originalist perspective. It can even create room for invoking, if only
implicitly, concerns about what we now call, in the language we use today,
23
Amartya Sen, The Idea of Justice (Harvard University Press 2009); the references to the works of the authors
cited, and of several others writing on the subject, can also be found in my discussion of their ideas.
24
25
Ludwig Wittgenstein, Philosophical Investigations (Blackwell 1953).
human rights. Even though engaging in debates on the understanding of
words and language might seem like an unlikely way of getting human rights
recognized, this type of linguistic analysis is, of course, entirely in line with
what we may nostalgically call philosophy.
7. The Need to Go Beyond Words
The question that remains is whether this is the right way of reflecting the ‘here
and now’ in legal judgments. There are at least three problems that must be
faced by the word-centered version of originalism. First, it may be unrealistic
to think that there would invariably be one unambiguous meaning assigned to a
chosen text that can be simply ‘read off’ from the prevailing understanding of
the words, particularly (to note Calabresi’s specification) ‘what the American
people think they mean’. The plurality—and ambiguity–of meaning would
clearly be relevant here. We may, with luck, escape John Dryden’s radical worry
that we can ‘torture one poor word ten thousand ways’, but contemporary
usage, which may permit much plasticity of interpretation, need not guarantee
a unique reading of the original texts.
This problem deserves a clear recognition, but it is not, I would argue, a fatal
objection to the philosophy of relying on the contemporary meaning of the
original texts. It may be inescapable that judges will have a considerable role in
choosing between alternative meanings that a text can have in conformity with
today’s use of the chosen words, but that will be a part of the discipline of legal
judgment. Clearly, a judge has to exercise judgment in choosing between the
different uses of the same words and linguistic expressions that are current
today, varying from the frivolous to the profound. Such judgment need not
always be easy—and yet such an exercise would be fundamentally different
from the unleashing of personal ‘moral or religious values’ of the judges
themselves. And it is not at all clear that how the judges can escape such
judgmental responsibilities.
There are, however, two other serious problems that should really give us
pause. Throughout the process of the making of the American Constitution,
the framers were very concerned with the reasoning behind the laws that were
being formulated, and it is not easy to see how the words chosen could be
divorced from the reasoning behind them. Indeed as Bernard Bailyn puts it, ‘it
was assumed that the ‘‘constitution’’ in its normal workings would specify and
protect the inalienable rights of man’.26 The word-centred view comes close to
denying the relevance of the reasoning behind the words that were chosen,
concentrating instead on the words—no matter what led to them. In response
to Cass Sunstein’s plausible observation that the framers of the American
Constitution would not have understood what precise issues are involved in
26
Bailyn, The Ideological Origins (n 22).
many contemporary legal debates,27 such as the desegregation of schools

(in Brown v Board of Education28) or in striking down anti-miscegenation laws
(in Loving v Virginia29), Calabresi argues that
the answer to that is that original meaning textualists have never claimed that
Congress understood what it was doing when it passed legal texts. All we have
claimed is that those texts are the law and have to be read like laws.30
The idea that we should stick only to the words that were written on behalf
of the Congress, and that it would not make any difference whether or not the
Congress knew what it was doing, would seem to go quite contrary to the ideas
behind the American Revolution and the force that they gave to the standing
and power of the Constitution. Philip Livingston, one of the signatories of the
Declaration of Independence, wrote in 1774, on the eve of the revolution, that
legal rights are ‘those rights which we are entitled to by the eternal laws of right
reason’.31 Alexander Hamilton, one of the Founding Fathers, and an author of
the Federalist Papers, wrote in 1775: ‘the sacred rights of mankind are not to be
rummaged for among old parchments or musty records’.32 The purely
word-centred view seems to go contrary to the intellectual foundations of the
American Constitution.
There is also a further—a third—worry about the word-centred view,
divorced from the ideas behind them, and this applies particularly to
Calabresi’s willingness to accept the present meaning of old words in
interpreting the Constitution. There are clearly two distinct evolutions that
are relevant for taking note of the changed world in which people live today: (i)
the development of particular values and priorities in line with the general
foundation of the ‘constitutional motivation’ (of facilitating a democratic,
tolerant and participatory society); and (ii) the progression of language and
rules for the use of words in the Constitution’s text (in the ‘old parchments or
musty records’, as Alexander Hamilton put it). The two processes will almost
certainly be related to each other within a given country and culture, but it
would be rather credulous to expect that the two must be, in some clear sense,
always congruent, even within a given country. Therefore, if we insist on
concentrating exclusively on the evolution of rules of language and words to
interpret the Constitution, we are abdicating what is primarily a valuational
exercise to a rather different domain of human thought and practice—that of
linguistic convention and its changes. In placing ourselves in the hands of the
27
Cass Sunstein, Radicals in Robes: Why Extremist Right-Wing Courts Are Wrong for America (Basic Books
2005).
28
347 US 483 (1954).
29
388 US 1 (1967).
30
31
Philip Livingston, The Other Side of the Question (1774), quoted in Bailyn, The Ideological Origins (n 22) 188
(emphasis added).
32
Alexander Hamilton, ‘The Farmers Refuted’ (1775) in The Papers of Alexander Hamilton (Harold C Syrett
ed, Columbia University Press 1961).
changing understanding of words and texts (‘what the American people think
they mean’), we are being asked to leave the choice of substantive ideas to the
evolution of linguistic rules. The logic of linguistic transformation may well fail
to correspond exactly—or even very closely—to the importance of the ideas
themselves. The evolution of ideas, especially normative ideas, is quite distinct
from the evolution of linguistic conventions and of the rules for interpreting
today’s meaning of old words.
The main issue here is the way in which the ‘here and now’ is best
accommodated—in an idea-centred way or in a word-centred way. We may try to
accommodate the present-day world by taking note of the significant changes
that have occurred over time, either by following the evolution of specific ideas
compatible with the general constitutional motivation, or by following the
linguistic evolution of the words and expressions used in the Constitution. I
would argue that the former route, focusing on the constitutional motivation,
has a claim to our attention in a way that the latter—the linguistic route—may
not be able to capture adequately. The former route is certainly more able to
take direct note of the recognition in the Constitution (including its
Amendments, particularly the 9th) that, as Bailyn puts it, ‘new dangers and
new needs will emerge, and that to respond to these dangers and needs, rights
must be newly specified to protect the individual’s integrity and inherent
dignity’.33
It is important to distinguish this route from the much-criticized possibility
of the judges being free to use their ‘own values’. Indeed, in trying to do justice
to either of the two approaches, judges interpreting the Constitution would
be engaged in an exercise different from that of relying on ‘their own personal
moral and religious beliefs’. If the word-centred route forces judges to decide
between different contemporary understandings of the same words, the
idea-centred route requires them to decide between the forces of different
contemporary arguments, in line with the constitutional motivation. In both
cases, the judges have an interpretative role rather than one of incorporating
their own moral and religious beliefs in the guise of interpretation. But the two
cases involve two quite different approaches to interpretation.
8. Parochialism and the Impartial Spectator

The issue of interpretation links with another issue. If public reasoning has a
role in legislation as well as in legal interpretation, should it be confined to the
debates and experiences within the borders of a country? Confining judicial
and moral scrutiny to ideas within the borders of each country is an approach
to justice against which Adam Smith warned, in 1759, in The Theory of Moral
33
Bailyn, ‘The Living Past’ (n 22).
Sentiments, as well as in his posthumously published Lectures on Jurisprudence.34

Smith was particularly concerned about avoiding the grip of parochialism in
moral and political reasoning in general, and in jurisprudence in particular.
In The Theory of Moral Sentiments, Smith gives various examples of how
discussions confined within a given society can be unreasonably limited by
parochial understanding. Among his many telling illustrations is the famous
one of the ancient Greeks—even the civilized Athenians among them—who
believed that that infanticide was perfectly justified in many circumstances.
Smith notes:
Aristotle talks of it as of what the magistrates ought, upon many occasions, to
encourage. The humane Plato is of the same opinion, and, with all that love of
mankind which seems to animate all his writings, nowhere marks this practice with
disapprobation.35
Smith’s claim was that if the ancient Greeks had subjected their assumptions
to critical scrutiny, particularly by taking note of arguments coming from
elsewhere, possibly including the understanding that societies can survive well
enough without infanticide, then their decisions might well have been quite
different.
This example occurs in a chapter of Smith’s book that he revealingly calls
‘On the Influence of Custom and Fashion upon the Sentiments of Moral
Approbation and Disapprobation’. He points to the fact that
the different situations of different ages and countries are apt . . . to give different
characters to the generality of those who live in them, and their sentiments concerning
the particular degree of each quality, that is either blamable or praise-worthy, vary,
according to that degree which is usual in their own country, and in their own
times.36
He argues powerfully for the importance of bringing in arguments that may
have originated at ‘a certain distance from us’, but that should command our
attention.
While Smith’s example of infanticide remains pertinent in only a few
societies today, some of his other concerns have relevance to many contem-
porary societies. This applies, for example, to his general insistence that the
eyes of the rest of mankind must be invoked to understand whether a
punishment appears equitable. Scrutiny from a distance may be useful for
many specific practices common in particular countries—from the prosecution
of raped women for adultery (possibly also subjecting them to death by
stoning) in several countries in the world to the plentiful use (to consider a very
34
Adam Smith, The Theory of Moral Sentiments (Cadell 1759, final edition 1790, Penguin 2009) and Lectures
on Jurisprudence (first published 1762–63, OUP 1976).
35
Smith, The Theory of Moral Sentiments (ibid) ch 2.
36
ibid.
different type of example) of capital punishment in China, Iran, Iraq and Saudi
Arabia, or for that matter in the United States, in contrast with the bulk of the
modern world. The United States executes more people than any other
country in the world (52 in 2009), with the exception of China, Saudi Arabia,
Iran and Iraq, based on figures for 2008 and 2009.37 The ‘Smithian’ issue here
is not – indeed not at all – to follow blindly the practice of other countries that
do not allow capital punishment (like those in Europe and substantial parts of
Latin America) or that carry out executions quite rarely (as in India, South
Korea or Russia, none of which has had an execution in more than five years).
It concerns, rather, the legitimacy of considering, and critically examining,
the reasons that are invoked to argue against the acceptability of capital
punishment and of executions in those countries.
It should be obvious that if the freedom of interpretation of a country’s
constitution is confined only to the use of language within the country (as
Calabresi puts it, ‘what the American people think they mean’), then
arguments coming from elsewhere would be hard to admit, and Smith’s fear
of parochialism would remain real. There would be much more freedom as
well as judicial responsibility if the discipline of interpretation were to extend to
values and normative arguments, as opposed to linguistic conventions, that
prevail within the borders of a country. There could be even more interpret-
ative freedom—and correspondingly demands for judiciary responsibility—if
arguments from elsewhere in the world could also be admitted and considered
by the judges.
It is clear that many leading members of the American judiciary, including
what looks like the present majority in the Supreme Court, are reluctant to
entertain legal arguments that were presented in foreign courts. As Chief
Justice John G Roberts has put it, ‘No president accountable to the [American]
people appointed that [foreign] judge’.38 The focus here is on the proven-
ance—and legitimacy—of the voice, rather than on the nature of the argument
presented. What is important in the Smithian reasoning is the broadening
impact of arguments invoked by the ‘impartial spectator’, and it is a matter of
no intrinsic significance that such arguments may come easily—sometimes more
easily—‘from a distance’, rather than from nearer to home.
9. Arguments and Judgments

It must be recognized that to listen to distant voices does not require us to
be respectful of every argument that comes from abroad. We may reject a
great many of the ideas coming to us from elsewhere—sometimes even all of
37
See Amnesty International, Death Sentences and Executions in 2008 (Index ACT 50/003/2009), and Death
Sentences and Executions in 2009 (Index ACT 50/001/2010).
38
Adam Liptak, ‘Ginsburg Shares Views on Influence of Foreign Law in Her Court, and Vice Versa’ New
York Times (12 April 2009) A14.
them—and yet there could remain particular cases of reasoning that could
make us reconsider our own understandings and views, linked with the
experiences and conventions entrenched in a given country or culture.
I turn now to a consideration that applies particularly to countries that are
intellectually as open as the United States. Given the freedom and the scope of
public discussion in such countries, it is very likely that any serious argument
aired elsewhere, including well-argued legal judgments in important foreign
courts, will have been, in one way or another, discussed also within the borders
of the country—within its own open civil society—often with considerable local
support. If the limiting consideration is not that the arguments will have been
entertained in American judicial decisions, but that the arguments, despite
their foreign origin, will have interested and engaged the American public, then
the range of admissibility could indeed be correspondingly larger.
In fact, the American public has not been indifferent to reasoning coming
powerfully from foreigners—from Gandhi or from Mandela or, for that matter,
from Jesus Christ. Such ideas from elsewhere have become part of the national
dialogue, and it has not mattered where they had their origin. And if the
legitimacy of legal judgment extends not only to prevailing linguistic conven-
tions, but also to the force of values and ideas compatible with the foundational
motivation behind the Constitution, then the freedom and the responsibility of
judicial interpretation must, to that extent, be extended.
As it happens, the isolationist convictions of powerful members of the
American judiciary are in sharp contrast with the views of the judiciary in many
other countries. As Lord Bingham—the former Master of the Rolls, Lord Chief
Justice of England and Wales and Senior Law Lord—has recently discussed in
his illuminating and powerfully reasoned book, Widening Horizons: The
Influence of Comparative Law and International Law on Domestic Law, there are
really serious limitations in terms of jurisprudence in seeing the laws of any
country as an island, entire of itself.39 And as Lord Justice Sedley argues,
illustrating and supporting Bingham’s conclusion, in his forthcoming book
Ashes and Sparks: Essays on Law and Justice, the European Convention of
Human Rights ‘has deepened our own [British] jurisprudence and sharpened
our judicial standards’.40
But even if it were to be resolved—bowing to Chief Justice Roberts rather
than to Chief Justice Bingham—that foreign judgments should not gain a
hearing in American legal arguments, it is hard to see how the relevance of
arguments entertained by the American public can be similarly dismissed.
There is nothing in the American Constitution, including the Amendments,
deliberated in a broad Enlightenment background, that calls for such a
dismissal of new arguments that are consistent with the constitutional
39
Thomas Bingham, Widening Horizons: The Influence of Comparative Law and International Law on Domestic
Law (CUP 2010) 5.
40
Stephen Sedley, Ashes and Sparks: Essays on Law and Justice (CUP 2011) xvii.
motivation. Nor is there any rejection of the necessity to consider ‘new dangers
and new needs’ in the future, the possibility of which was clearly foreseen by
the American constitutionalists.
It turns out, then, that the distinction between interpreting the original texts
in terms of changing linguistic conventions applied to the specific words of the
Constitution, and interpreting them in the light of the original constitutional
motivation, taking note of public reasoning, including contemporary public
reasoning, is enormously significant. The interpretation of laws can greatly vary
according to which route we take in examining the contemporary understand-
ing of legal requirements that were formulated in a different time, in a different
world. The connecting link of the ‘constitutional motivation’ is important here,
and so is Philip Livingston’s powerful reminder, shortly before he signed the
Declaration of Independence, of the force of ‘the eternal laws of right reason’.

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Oxford Journal of Legal Studies, Vol. 31, No. 3 (2011), pp.

Rights, Laws and Language

Keywords: human rights, rules of language, words and meanings, originalism,

2. Words and Rights

3. The Status of Human Rights

4. Human Rights and Legal Rights

5. Legal Interpretation and the Law

Justice Antonin Scalia of the US Supreme Court has famously articulated

6. Words, Intentions and Motivation

called ‘the constitutional motivation’, and it could even be seen, without

many contemporary legal debates,27 such as the desegregation of schools

8. Parochialism and the Impartial Spectator

Sentiments, as well as in his posthumously published Lectures on Jurisprudence.34

9. Arguments and Judgments

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