James Plunkett, The Duty of Care in Negligence, Oxford: Hart Publishing, 2018, xxiv + 256 pp, hb £55.00.

Published date01 May 2019
Date01 May 2019
DOIhttp://doi.org/10.1111/1468-2230.12422
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REVIEWS
Gr´
egoire Webber,Paul Yowell,Richard Ekins,Maris K¨
opcke,Bradley W. Miller and
Francisco J. Urbina,Legislated Rights: S ecuring Human Rights Through
Legislation, Cambridge: Cambridge University Press, 2018, 209 pp, hb £85.00.
Legislatures, as the authors of this book acknowledge, are not generally regarded
by theorists, lawyers or citizens as the principal institutions for securing human
rights. This task is generally credited to judges and courts. The aim of Legislated
Rights is to challenge these perceptions, by dislodging the automatic presump-
tion in favour of judicial oversight and emphasising the protective role that
only legislatures can play in securing human rights. The book rests the case for
legislatures as ‘full, priority par tners in the project of protecting and promoting
human rights’ (25) on the necessity of detailed normative specification that can
only, or only properly, be provided through primary legislation. In the course
of rehabilitating legislatures’ generally poor reputation, the book generates a
productive set of questions about what the project of securing human rights
entails, and how that division of institutional labour should be understood in
the broader context of democratic government.
The book’s format is a little unusual. Although it has six ‘co-authors’ who
write separate chapters, it is not conceived as an edited collection but rather as a
‘single-authored monograph pursuing an argument’ (21). It is a joint project in
which successive chapters build on each other and engage in mutual dialogue.
While there are inevitably slight differences in style and tone throughout the
book, these subtle differences complement rather than detract from the central
arguments. All the chapters address shared core questions, and adopt a broadly
similar analytical approach in making the case for legislatures as institutions with
an essential role to play in securing human rights. The book does not attempt
to describe, explain, or justify the actions of all legislatures, but rather adopts
the central-case method underscoring the reasons to have legislatures in the
first place (3). The book is not concerned with ideal cases. Rather, explanatory
priority is g iven to those cases that reflect the rationale for legislatures. For
the authors, this rationale is located in the need ‘for the law to be changed in
some way, to form and revise reasoned proposals to change it, to debate, and
then to choose a proposal to bring about a change to the law through an act
of legislation’ (3). Neither the authors’ rationale for legislatures nor the central
case method itself are objectionable, but this approach does create a structural
asymmetry by prioritising the central case of leg islating whilst marginalising
non-central cases of judicial review. More on this asymmetry later.
The book’s main argument is helpfully introduced by way of four theses and
counter-theses. These four adversarial pairs do not map neatly onto particular
chapters, but taken together form the spine of the book’s argument. The four
arguments that the book sets out to challenge are: (i) that the primary role of the
legislature is to maximise overall utility and aggregate preferences; (ii) that the
C2019 The Author.The Moder n Law Review C2019 The Modern Law Review Limited. (2019) 82(3) MLR 577–602
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Reviews
legislature is majoritarian in nature; (iii) that the leg islature acts in opposition
to human rights in the name of the public or electoral interest; and finally (iv)
that human rights are defeasible because they must be balanced against other
interests. The counter-theses the book offers by way of reply are, respectively:
(i) the legislature takes reasoned action and, in its central case, does so to
promote the common good; (ii) there is nothing inherently majoritarian about
legislatures; (iii) in its central case legislation does not undermine or oppose
human rights, but to the contrary; (iv) secures human rights by specifying them
so they are not defeasible to general interests. Each chapter tackles these theses
pairs, and the assumptions that inform them, from different angles and on the
basis of different counter-arguments.
Substantive analysis begins with the structure of legislative rights. Webber
argues, in Chapter 2, that only rights specified into ‘three-term relations’ are
rights properly so called. The purpose of this three-term structure is to clar ify:
(i) who is to act or refrain from acting; (ii) in what way; and (iii) in relation to
whom. Only rights with this structure entail the existence of duties. Moreover,
recalling Aquinas’ notion of determinatio, rights in this specified form shape
relations between people in the manner that is necessary to realise justice (49-
51), and only legislation can perform this prescriptive task satisfactorily. The
transition between Chapters 2 and 3 links these necessary features of rights
with necessary features of law. In Chapter 3, K¨
opke argues that rights must be
specific, and law – and only law – can achieve this process of specification to
‘transform our generic, context-dependent and defeasible reasons to advance
other people’s wellbeing into specific, and thus action-guiding, moral duties’
(56). As Ekins emphasises in Chapter 4, legislatures are governmental institu-
tions that undertake this process of specification in a reasoned way. Legislatures
should not be caricatured as majoritar ian ‘machines driven by popular prefer-
ence’ (86), as only they can concretise rights in an appropriately deliberative
and intelligent fashion.
From Chapter 5 onward, the book shifts to deploying the theoretical frame-
work and analytical distinctions established in earlier chapters to revisit more
familiar ground for securing human r ights: international human rights doc-
uments and judicial review. In Chapter 5, Yowell argues that foundational
rights-promoting instruments, such as the Universal Declaration of Human
Rights, cannot be implemented absent the process of specification that only
legislatures can provide. He argues that these sorts of international documents
are inchoate by design, and therefore require the sort of further articulation
by legislatures expounded in previous chapters. Urbina, in Chapter 6, con-
tends that this process of specification also aids adjudication undertaken by
courts. Clearly specified rights, so the argument goes, prevent judges from ‘un-
constrained moral reasoning’ (152). According to Urbina, courts benefit from
legislative constraints, and so by extension does the practical enforcement of
human rights. Courts are able to do what they do best when they can make
decisions ‘according to law’ (180). Conversely, ‘adjudication unconstrained and
unguided by the law . . . will likely frustrate its ability to realise human rights’
(160). Courts benefit from direction provided by legislatures both for intrinsic
reasons that reflect the structure of judicial decision-making (164), and out-
578 C2019 The Author. The Modern Law Review C2019 The Modern Law Review Limited.
(2019) 82(3) MLR 577–602

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