Reviewed by David G. Barnum, Department of Political Science, DePaul University. Email: dbarnum [at] depaul.edu.
This medium-length but very impressive book undertakes to explain the adoption (and the timing of the adoption) of various types of "bills of rights" in three "Westminster-style democracies" – Canada, New Zealand and the United Kingdom – and the failure of a fourth such democracy – Australia – to follow suit. Erdos devotes limited attention to the experience of other countries, but his comparative observations are pertinent and insightful. In particular, the book includes a brief but quite detailed discussion (in its final chapter) of Israel's 1992 adoption of Basic Laws on human rights.
Erdos’s overriding purpose is to use the "national experiences" of the four countries on which he focuses as a vehicle for proposing "a new explanation for the deliberate adoption of a bill of rights in stable, advanced democracies" (pp.4-5). To achieve this purpose, he offers very useful chapter-long descriptive case studies of the genesis and adoption of some form of a bill of rights in Canada, New Zealand, and the United Kingdom, and the failure of the bill of rights project in Australia. More importantly, he seeks to comprehend these individual national experiences through the lens of what he calls a "postmaterialist trigger thesis," or PTT. The thesis is a two-part explanatory tool that argues that adoption of a bill of rights was secured in three countries "by the confluence of  the gradual development of background forces conducive to change (most notably the growth of a powerful postmaterialist rights constituency) and  a political trigger which [provided elite political actors with] an immediate rationale and impetus for [reform]" (p.5). Conversely, what was missing in the case of Australia – a country in which there also existed a "strong civil liberty and social equality constituency, clearly committed to securing a bill of rights" – was "the presence of a clear political trigger providing elites with an impetus for change" (p.8).
It is worth mentioning at the outset why the presence or absence of a "political trigger" is critical to Erdos' theory of bill of rights adoption in Westminster-style democracies. There are perhaps two main reasons. First, the deliberate adoption of a bill of rights will constitute (or at least will be perceived to constitute) a significant transfer of power from legislative and/or executive political elites to the judiciary. Since support for adoption of a bill of rights among "elite political actors" is essential, but since such actors "will usually recoil from such proposals," a "concrete trigger providing a clear and specific political rationale and impetus" for reform will be required (p.5). Second, while the democracies on which Erdos focuses all qualify as "post-[*186] materialist societies," they also have in common a "British-descended Westminster political culture, with its strong defence of parliamentary sovereignty and distrust of formalized rights provisions" (p.26). This distrust provides an additional compelling reason to identify the political trigger or triggers that lead, often after years or even decades of debate, to adoption of some form of a bill of rights. In addition, of course, it is plausible, as Erdos convincingly argues, that the nature of the political trigger will influence not only the adoption of a bill of rights but also both "the precise timing of change" and "the type of bill of rights adopted, including [both] its strength and, generally, its scope" (p.27).
Following an introduction, Chapter 2 explores the question of how best to "[capture and formalize] variation in the designed strength of bills of rights," including, but not limited to, the bills of rights in the four countries on which the book itself focuses. Erdos constructs a score of "bill of rights institutionalization" (henceforth “BORI”) for all thirty-six of the democracies included in Arend Lijphart's 1999 study of Patterns of Democracy (p.15). Erdos constructs his BORI score by focusing on (1) the status, (2) the rigidity, and (3) the scope of bills of rights in Lipjhart's sample of countries and assigning to each country a score on a four-point scale on each of these dimensions. The resulting BORI score is calculated by averaging each country's score on each of the three dimensions, yielding a score which itself falls between zero (the prize goes to Australia) and four (Japan tops the list with a score of 3.75; the U.S. comes in with respectable 3.25; the current average level of national BORI in all thirty-six countries is 2.82; and the current average level of national bill of rights institutionalization in the Westminster democracies (including Australia) is 1.42, with Canada scoring 3.00, the United Kingdon 1.50, and New Zealand 1.17) (pp.18-20, Table 2.1, and Appendix C).
Lest these scores seem reductionist and arbitrary, it bears mentioning that Erdos would probably concede that this is a fair characterization of any effort to reduce to a single number something as complex and nuanced as the degree to which a country's bill of rights serves as an effective barrier to governmental abridgment of individual rights. However, the focus of the study is on the adoption of a bill of rights, and Erdos readily acknowledges, for instance, that his national BORI scores fail to take into account the way in which judges have actually deployed their constitutional and/or statutory power or the degree of compliance with which their decisions are met by relevant executive and legislative elites. In the meantime, the individual indices are carefully and sensibly constructed. The "status" variable, for instance, "measures the relationship between bills of rights and other [ordinary] law," ranging from a bill of rights which is "supreme against any contrary non-constitutional legal provision" (coded 4), through instruments with "notwithstanding" clauses or instruments which "[empower] the government to fast-track remedial legislation" (coded 3 and 2 respectively), to bills of rights which merely instruct courts or other institutions to rely on bill of rights principles to "inform the interpretation of other primary laws" (coded 1) [*187] (Appendix B, pp.174-5). The "rigidity" variable measures how easy or difficult it is to amend or repeal a country's bill of rights (again coded on a scale of 1-4). Finally, the "scope" variable takes into account the range of rights that a country's bill of rights protects and again yields a four-point scale based on the presence or absence of individual provisions protecting one or more specific rights within various categories of rights (civil and political rights, social and economic rights, and "third-generation rights," the latter including environmental rights, rights for ethnic minorities and/or indigenous peoples, and rights for special groups such as consumers, children, the elderly, or the handicapped). The result of this exercise may justifiably be condemned as misleading or simplistic. At the same time, it represents a useful and unavoidable starting point for assessing the operational strength of a bill of rights as a protection against arbitrary governmental power.
Chapter 2 also includes helpful charts and tables illustrating and summarizing Erdos’s approach to constructing a national bill of rights institutionalization score. In addition, it undertakes a basic effort to correlate the strength of a country's BORI score with various potentialexplanatory variables, including the strength of a country's federalist divisions of power, the independence of its central bank, the presence or absence of centralized versus decentralized judicial review, the timing of adoption of a bill of rights (including both the year of its adoption and whether adoption did or did not occur in conjunction with "a moment of clear political transition [such as] independence [or] regime change"), and whether a country has a "British heritage," a designation which applies, for instance, to Barbados and India as well as the four Westminster democracies on which the book itself focuses (pp.15-20). Erdos finds a positive correlation between national BORI scores and adoption of a bill of rights at a moment of political transition, on the one hand, and measurably lower BORI scores among countries with a British heritage, on the other:"having a British heritage correlates to having a BORI score 0.70 lower than non-British heritage countries" (p.19). He finds "no evidence of a significant relationship between national bill of rights institutionalization and any of the other variables included" (p.19).
Chapter 3 has two important purposes. First, it sets forth in more detail the Postmaterialist Trigger Thesis. Second, it systematically compares the content and implications of the PTT thesis with other leading theories of bill of rights adoption.
Elaboration of the Postmaterialist Trigger Thesis begins with a summary of the conclusions of Inglehart (1977; 1990) and others on the emergence of a postmaterialist value orientation among the populations of advanced industrial societies and the concomitant "reorientation as regards attitudes towards human rights," including "increased focus on questions connected with civil liberties and human rights" and "increased support for the value of social or human equality" (p.25). These value changes lead to "increased demands that fundamental civil and political liberties be subject to more formal protections," a shift that may be "encouraged by the growing sense of vulnerability to arbitrary action which a [*188] more individualized society tends to produce" (id.). The result is the growth – or at least the "growing salience" – of [a] postmaterialist rights constituency [that] constitutes the most pervasive and important factor favouring (and structuring) BORI in stable, advanced democracies" (p.26). The further result is the inclusion in "all of the government-sponsored national bills of rights enacted or proposed within Westminster democracies since 1960 [of] nine core legal and due process rights, five core civil rights, and a right to equality or non-discrimination." In the meantime, notably absent from "a majority of the bills of rights enacted or proposed by Westminster governments since the Second World War" is "a general right to private property" (p.26, Chart 3.1, and Appendix A).
Erdos then uncoils his argument that in addition to "background postmaterialist pressures [the] active support of the incumbent political elite is invariably required for successful BORI" and that this in turn requires "the emergence of a political trigger" (p.27). In particular, he identifies two such triggers: (1) an "'aversive' political trigger [that] arises when a newly resurgent political elite is motivated to champion a bill of rights in reaction to prior negative political experiences in opposition" – and in particular the experience of being in opposition "under a government perceived as heavy-handed and authoritarian" (the American Bill of Rights is arguably the preeminent earlier "British-descended" example of such a political trigger!) – and (2) a "threat to political stability" trigger that serves as the catalyst for adoption of a bill of rights when a polity is "challenged by centrifugal threats to the continuing stability of a country's political regime" (here the analogy to the United States breaks down and must be replaced – given the pre-existence of a Bill of Rights and the less "multicultural" (but not wholly homogeneous) character of the times – by allusions to the Federalists' notorious Alien and Sedition Acts!) (p.30).
In connection with his discussion of the "aversive" political trigger, Erdos makes the interesting point that as an elite is poised to emerge from opposition and "senses [a] new chance to return to power, self-interest may result in a faltering of interest in [reform.] Nevertheless," he notes, "normative self-entrapment and policy drag still ensure that real reform can occur" (p.29). In terms of actual cases, Erdos situates the genesis of the Canadian Bill of Rights Act (1960), the New Zealand Bill of Rights Act (1990), and the British Human Rights Act (1998) "within this 'aversive' template" (p.29). Alternatively, he sees the genesis of Canada's subsequent Charter of Rights and Freedoms (1982) as "fit[ting] the 'threat to political stability' trigger" (p.30).
The second purpose of Chapter 3 is to compare the author's postmaterialist trigger thesis with seven existing theories of the genesis and adoption of bills of rights. Existing theories include what Erdos labels (1) "constructivist theory" (e.g., Weinreb, 1999; Gearty, 2006); (2) "institutionalist theory" (e.g., Lijphart, 1984, 1999); (3) "transnational diffusion theory" (e.g., Simmons, Dobbin, and Garrett, 2006; Goodman and Jinks, 2004; Schauer, 2005); (4) the Knowledge Class Thesis (e.g., Morton and Knopff, 2000; Bork, 2002); and (5) [*189] the Neo-Marxist theory (e.g., Griffith, 1977; Mandel, 1998) (6) the Political Insurance Thesis (e.g., Ginsburg, 2003; Finkel, 2005) – a theory that rightly claims that "incumbent political elites occupy a strategic position" but wrongly emphasizes that the specific political trigger required for BORI to take place "may only be related to a strictly rational, prospective, power-focused calculation on the part of incumbents" (p.43) – and (7) the Hegemonic Preservation Thesis (e.g., Hirschl, 2004) – a theory that wrongly shares with the Political Insurance Thesis a "strictly forward-looking, prospective, power-based understanding of the trigger behind" the adoption of a bill of rights (p.43), but nevertheless offers a "compelling" explanation of the "basic shape" of the origins of bills of rights (p.44). Erdos acknowledges that his PTT "borrows positively" from the constructivist, transnational diffusion, and Knowledge Class theories (p.40) and is "heavily influenced by the Political Insurance Thesis' understanding of BORI (p.43). In the end, however, he argues that they "constitute rival explanation for the origins of bills of rights in stable, advanced democracies" (p.44).
Part II of Erdos's book consists of five chapters in which he elucidates the historical path to adoption (or non-adoption) of a bill of rights in Canada, in the Canadian Bill of Rights Act (1960) and subsequently in the Canadian Charter of Rights and Freedoms (1982); New Zealand, in the New Zealand Bill of Rights Act (1990); the United Kingdom, in the Human Rights Act (1998); and Australia, which, "[d]espite over thirty years of public debate, [has] not adopted a national bill of rights" (p.126). The chapters are authoritative guides to the process of adoption or attempted adoption of bills of rights in the four Westminster democracies and convincing testimonials to the explanatory power of the postmaterialist trigger thesis.
Erdos’s concluding chapter sums up his argument that "[p]ostmaterialization has constituted the most important background factor behind BORI projects in Canada, the United Kingdom, New Zealand, and Australia," but that what provides elite actors with "a clear and immediate impetus for change" is "a contingent political trigger" (pp.149-150). The chapter also summarizes the additional features of his PTT theory, including the indispensable role of political elites in the adoption of bills of rights, the "dampen[ing]" effect of "British-descended norms of parliamentary sovereignty and an apolitical judiciary [on the] demand for a strongly constitutionalized bill of rights”, and the role of two distinct political triggers in determining both "the precise timing" of reform efforts and the "nature" of the bills of rights that emerged from those efforts (p.150). Two final sections of the book explore the applicability of the PTT to Israel's experience with adoption of Basic Laws on human rights in 1992 (pp.153-62) and the "broader relevance" of the PTT to understanding the adoption of bills of rights in other non-Westminster contexts and in eras other than the post-World War II period, including a brief discussion of the role of economic liberalism and the preeminence of property rights in the adoption and judicial exposition of the U.S. Constitution (pp.163-5). [*190]
In sum, Delegating Rights Protection is a lucid, concise, and substantive exposition of a plausible theory of the adoption or attempted adoption of bills of rights in four Westminster-style democracies. Judged both in terms of its self-proclaimed aim of "explain[ing] the deliberate adoption of a bill of rights in stable, advanced democracies" (p.5) and in the broader context of the several bill of rights adoption theories on which it builds and with which it seeks to compete, the book does an excellent job of advancing our understanding of the perennially intriguing question of why, when, and how particular countries take the important step of attempting to secure the protection of individual rights by inscribing them in quasi-constitutional statutory enactments or in formally entrenched constitutional documents.
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© Copyright 2012 by the author, David G. Barnum.