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"Negative" Rights vs. "Positive" Entitlements: A Comparative Study of Judicical Interpretations of Rights in an Emerging Neo-Liberal Economic Order
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Human Rights Quarterly 22.4 (2000) 1060-1098



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"Negative" Rights vs. "Positive" Entitlements: A Comparative Study of Judicial Interpretations of Rights in an Emerging Neo-Liberal Economic Order

Ran Hirschl

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I. Introduction

The constitutionalization of rights has recently become a booming industry. More than eighty countries and several supra-national entities have engaged in fundamental constitutional reform over the past three decades. Significantly, nearly every recently adopted constitution or constitutional revision contains a bill of rights and establishes some form of active judicial review. 1 [End Page 1060] Despite the fact that judicial power has recently been expanded in many countries through the constitutional entrenchment of rights and the establishment of judicial review, few comparative studies have been undertaken to empirically assess the de facto interpretation given by national high courts of the newly enacted constitutional rights.

The dearth of research in this area is due in part to traditional American parochialism with regard to other countries' constitutional arrangements and practices, 2 and in part to the prevalent, but unexamined, assumption that constitutions have a significant and positive impact on the de facto status of rights and liberties, primarily by providing national high courts with the necessary institutional framework for becoming more effective in their efforts to protect the basic rights of disadvantaged groups and individuals. In fact, many scholars, legal practitioners and human rights activists assume that bills of rights are a necessary prerequisite, if not a sufficient condition, for the actual protection of concrete rights and liberties. Unfortunately, however, most of the assumptions underlying the contemporary debate regarding the impact of constitutionalization on patterns of judicial interpretation remain untested and abstract.

Drawing upon a systematic quantitative-qualitative analysis of the interpretations given by national high courts of the rights protected by the newly enacted bills of rights in Canada 3 (which adopted the Canadian Charter of Rights and Freedoms in 1982); New Zealand (which enacted the New Zealand Bill of Rights Act in 1990); and Israel (which adopted two new Basic Laws protecting various civil liberties in 1992), this paper seeks to identify a set of hegemonic principles in contemporary judicial interpretations of constitutional rights, and to offer a realistic assessment of the current potential for advancing progressive concepts of social justice through the constitutionalization of rights and rights litigation in capitalist democracies. [End Page 1061]

The recent constitutional jurisprudence of Canada, New Zealand, and Israel provides a nearly ideal testing-ground for identifying prevalent patterns of judicial interpretation of constitutional rights for several reasons. 4 First, all three countries have undergone a major constitutional reform over the past few years which included, among other things, the constitutionalization of rights and substantive judicial empowerment through the fortification of judicial review. Unlike many former Eastern Bloc and African countries, however, the dramatic constitutional changes in these three countries have neither been accompanied by, nor resulted from, major changes in their political regimes. It is, hence, possible to disentangle the relationships between the constitutionalization of rights and changes in hegemonic patterns of judicial interpretation in these three countries from other possible explanations for changes in judicial interpretation. Second, the recent constitutionalization of rights in Canada, New Zealand, and Israel marks a departure from the Westminster model of parliamentary supremacy and the established British legal tradition of judicial restraint in these countries, thus providing the Canadian Supreme Court, the New Zealand Court of Appeal, and the Israeli Supreme Court with the necessary institutional framework for becoming more vigilant in their efforts to protect basic rights and liberties. Indeed, these three national courts have reacted with great enthusiasm to the constitutionalization of rights and the fortification of judicial review in their respective domains by deciding many landmark constitutional rights cases over the past decade. Third, all three polities possess a strong British common law legal tradition. This common inheritance eliminates variations in legal tradition as possible explanations for differences in legal activity and judicial interpretation among the three countries. At the same time, these three countries represent different models of...