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Institute of Advanced Study

Two Conceptions of Constitutional Rights

Abstract

In this paper I argue that we can usefully distinguish between two conceptions of constitutional rights, such as the right to freedom of speech and the right not to be tortured, namely an ‘offensive’ and a ‘defensive’ conception. The argument will be that historically, and to a lesser extent contemporaneously, the American conception of rights is offensive, while what I shall call the Euro-British conception is defensive. I also say something about the position in Australia by way of contrast to both of these.

Insights Paper