Human Rights as the Unwritten Constitution: The Problem of Change and Stability in Constitutional Interpretation
We are, I believe, in the midst of a major jurisprudential paradigm shift from the legal realist-legal positivist paradigm of the legal official as a managerial technocrat ideally seeking the utilitarian goal of the greatest happiness of the greatest number, to a natural law paradigm of rights. This paradigm shift, most dramatically apparent in legal philosophy in the work of Ronald Dworkin, has not yet been fully and fairly articulated; therefore, we cannot be certain of the final form the paradigm will take or of the extent of its influence on thought about and the practice of law. I believe the paradigm to be of quite general significance throughout all areas of the law, but want here to address its relevance to constitutional law in particular where its importance in enabling us to rethink constitutional law in a more profound way is already being felt. The jurisprudence of rights directly challenges the existing state of constitutional theory and practice in the United States. It sharply repudiates the concessive majoritarianism of James B. Thayer's classic article, the value skepticism of Learned Hand, the jaundiced historicism of Alexander Bickel's later writings, and Herbert Wechsler's appeal to the apolitical and amoral ultimacy of neutral principles. In its place, the jurisprudence of rights takes seriously the fundamental normative concepts of human rights, in terms of which the founders thought and the Constitution was designed, in a way in which later constitutional theory, based on utilitarian legal realist premises, does not and cannot.
Richards, David A.J.
"Human Rights as the Unwritten Constitution: The Problem of Change and Stability in Constitutional Interpretation,"
University of Dayton Law Review: Vol. 4:
2, Article 4.
Available at: https://ecommons.udayton.edu/udlr/vol4/iss2/4
David A.J. Richards is an Associate Professor of Law, New York University School of Law. A.B., Harvard College, 1966; D.Phil., Oxford University, 1970; J.D., Harvard Law School, 1971; Member, New York Bar.
Paper was delivered to the Law and Humanities Program, A.A.L.S. Convention, Chicago, Ill., on January 3, 1979. Copyright David A.J. Richards, 1979.