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Frank Vibert

This chapter examines the role of ‘rights’ in providing guidance for complex normative choices in modern democracies. It distinguishes the role of rights in guiding policy choices from their role in providing the underpinning for the legitimacy of constitutions. It draws on search market theory to discuss the role of rights as benchmarks. Benchmarks help to make choices by assembling what is relevant to a choice, facilitating comparisons and by pointing to anomalies in valuations. The analysis distinguishes between procedural rights and substantive rights applying to socio-economic and environmental conditions. It makes an analogy with the role of benchmarks in financial markets. It suggests that the problems associated with narrowing, oversupply, manipulation and moral hazard that apply to benchmarks in financial markets apply also, for different reasons, to substantive rights claims used as benchmarks in non-market choices.

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Frank Vibert

This chapter opens a discussion continuing over the next three chapters that refines the challenges faced in reshaping the content of modern democratic constitutions. It considers three different possible starting points for thinking about constitutional content: goals, civic purpose and underlying motivation. It selects motivation as the starting point. It identifies a bundle of motives: material, emotive and normative that reflects the social context of constitution making. It identifies the different ways in which the different motives can be expressed in constitutional provisions. It establishes the importance of bounded rationality in a constitutional context.

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Frank Vibert

This final chapter brings together the components needed to upgrade constitutions so that they will provide the support that democracies need in the modern world. First, they need to extend their base so as to ensure common knowledge about all actors who wield authority in today’s world. Secondly, they need to provide more stringent path rules in order to bring together the content-lite reasoning of a democratic politics with the content-based reasoning of the law and expert bodies. Thirdly, they need to provide additional institutions to correct for the blind spots of democratic politics, notably a body concerned with intergenerational equity and a body concerned with constitutional oversight. Fourthly, they need to take a more parsimonious approach to assertions of rights and include mainly only procedural rights. Finally, they need to reaffirm the importance of consent through the use of referendums for policy and constitutional questions.

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Frank Vibert

This chapter first discusses the typically ‘ill-structured’ setting for public policy management. Secondly, it considers different approaches to better structuring of the setting. This involves the segmentation and compartmentalization of tasks and parallel processing between loosely connected organizations. From the perspective of democratic organization, it requires that constitutions provide common knowledge of all the new actors with authority and their arenas.

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Frank Vibert

This chapter sets out the reasons for the (almost) universal adoption of constitutions and the different ways of summarizing their intent in a democratic context (contracts/constraints and so on). It then discusses the separation that has occurred between discussions of constitutions and discussions of democracy. Among the reasons for this separation, subsequent discussion takes up the possibility that constitutions have simply lost their relevance in modern conditions. Finally, it distinguishes between key structural elements in a constitution – the foundational, the canonical and the purposive.

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Frank Vibert

This chapter continues the discussion of how democratic constitutions can address the issue of deep social differences in shared physical settings. It looks at three dimensions of difference: the spectrum of diversity; the range of effect on others; and the variety in the reaction of others to these external effects. The analysis takes a cognitive/behavioral perspective. The chapter concludes the discussion of how traditional constitutions are no longer suited to modern conditions.

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Frank Vibert

This chapter discusses the importance of fairness in satisfying the emotive aim of constitutions to achieve togetherness and a willingness to cooperate. It distinguishes between three different concepts of fairness – distribution, equality and fair play. It assesses each concept against different models for achieving togetherness including ‘esteem’. It identifies the importance of reciprocity and relationship values for societies where there exist uncertainties in relationships and an absence of a common agreement on fair shares. It discusses the limits to achieving fair play in relationships based on tacit understandings in society. It identifies where constitutions need to establish explicit rules that provide a common understanding of where authority is exercised, ‘path rules’ for moving from one position to a preferred position, and normative guidance in the form of rights or additional institutions that address blind spots in democratic processes.

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Frank Vibert

This chapter looks at democratic political decision making in the context of ‘hierarchy’ or when disputes arrive at the top level of political choice and policy making. It identifies the special problems of distance, exclusionary voting and decision rules, and the arbitrary enumeration of powers. It describes four main accounts of how politics can overcome these problems including that provided by theories of discourse democracy, consociationalism, and the short cut approach of the source-based or associative model. The chapter describes the critical differences in the accounts they offer of how persuasion works in democratic politics in order to overcome differences. It concludes on the shortcomings of each account.

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Frank Vibert

This introductory chapter establishes the book’s focus on the content of the rules for a contemporary constitution. It adopts the normative perspective of a democratic society. It discusses units of observation and levels of analysis and sets out a trans-disciplinary approach. It identifies key elements in subsequent analysis including motivation, social diversity, fairness, rationality and the emotive, and chains of intermediation. It introduces the key challenges involved in upgrading contemporary constitutions.

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Frank Vibert

This chapter examines the role of rights in providing legitimacy to a constitution. It looks first at the pragmatic case based on compensating for the many compromises involved in drawing up constitutions. It looks secondly at the case for a more principled link between rights and ideas about the rule of law. For this purpose, it draws on Kelsen’s theory about the basic norm as a transcendental concept or ‘presupposition’ that gives ‘validity’ to lawmaking. In Kelsen’s view, only mainly procedural rights should be included to support the rule of law. The chapter turns thirdly to examine the case for rights to go beyond procedure and to provide an extensive normative foundation for constitutions including many varieties of substantive rights. It discusses the relationship between political values and moral judgments and concludes on the importance of recognizing that some moral judgments are formed outside constitutional frameworks.