The central argument of this thought-provoking multi-authored book is that the liberal constitutionalist understanding of human rights – an understanding on which such rights are held against political institutions and interpreted and enforced principally by the courts – is confused and unjustifiable. Confused because human rights properly conceived are rights that imply duties for all, not just institutions. Unjustifiable because the model downplays the crucial importance of legislative as opposed to judicial activity in specifying and securing our most basic rights. “The expression ‘human rights law’,” the book's authors suggest, “should not be taken primarily to denote a specialised subset of legal materials”, namely those associated with Bills of Rights and international rights instruments; “properly understood, it expresses the specific role of positive law – and centrally legislation – in securing right relations between persons” (p. 21). On this conception, human rights are to be thought of less as a limit on the possibilities for political action – for example, as preventing legislative bodies from acting inconsistently with judicially interpreted principles of free expression – and more as a deliverance of it. Our rights are secured by and not in spite of politics.

What then of the book's first main claim, that human rights, properly understood, are rights in relation to (and thereby imply duties for) all, not just political institutions? Consider in this regard the right to life, as contained in Article 3 of the Universal Declaration on Human Rights and Article 2 of the European Convention on Human Rights. Intuitively, one might think that the principal aim of such a right is to prevent governmental bodies from depriving individuals of their lives. But, as the book's authors note, “in most societies, there are constant dangers to life and the security of the person… from individuals to one another” (p. 120). As such, the authors suggest, the protection of the right “depends to a great extent on establishing criminal law and on its effective operation” and also on “the cause of action in tort law for wrongful death, and by various kinds of laws designed to reduce instances of death by negligence or accidental causes” (pp. 120–21). In turn, this expansive conception of the right to life has clear implications for the functions of legislative action in relation to it. No longer a body whose role is limited largely to either respecting or violating the relevant right – such a right being, on the standard model, a side-constraint on institutional decision-making – instead the legislature becomes, by virtue of the centrality of legislation to the development and maintenance of criminal and private law, a body whose role is essential to securing it. On this picture rights against institutions become rights that enable institutions.

There are, I think, two ways of interpreting this argument, both adverted to in the book but neither of which secures the payoff that the authors seek. On the first, less radical, version of the claim we hold onto the picture of the state as primary duty-bearer in relation to human rights but suggest that this duty, at least in some circumstances, implies a positive obligation on political institutions to secure the interest associated with the right from interference by others. On this picture, establishing laws against murder, for example, would be understood as a key part of the positive obligations of the law-maker to take appropriate action to protect the right to life. The duty remains on political institutions, although this has implications for the law regulating the relationships between individuals.

This attitude towards human rights – one on which rights cast largely in negative language have been taken to imply a number of positive duties – has been a mainstay of the European Court of Human Rights, but it cannot be the one the authors intend to endorse. Rather than enabling legislative choice in our picture of human rights, such obligations place further limitations on it: the state must act to fulfil its positive obligations, and although there is inevitably some discretion involved in the decision as to how to do so – for example, in deciding how to cast the criminal prohibitions essential to protecting the right to life – this discretion is bounded and not open. Moreover, it is in large part through such a conception of human rights that courts such as the European Court of Human Rights have mobilised and expanded their jurisdiction. If judicially enforced rights instruments are seen to imply positive obligations on institutions, then the courts will take it to be their duty to ensure such requirements are met. Indeed, it is most commonly in demanding positive action rather than placing side-constraints on political choice that judges are criticised for overstepping the mark. The less radical version of the claim, then, cannot be that which the authors have in mind.

The more radical alternative involves us dispensing with the notion of political institutions as sole or primary duty-bearers in relation to human rights and holding that such rights are, properly speaking, rights not only for but against all persons. On this view the establishment of the law against murder not only involves the state satisfying its obligations in relation to the right to life but also serves to protect each of us from potential human rights abuses by other individuals. Should we view human rights in general as encompassing this horizontal dimension? Setting aside for now the question of what it might mean practically for an individual (as opposed to the state) to violate, for example, another's right to fair trial or their right not to have retroactive criminal punishments imposed upon them, there is a deeper conceptual issue here. Doubtless if I deprive you of your life or torture you I have seriously wronged you, but have I violated your human rights? The natural answer is that there is a difference between state sanctioned extra-judicial killing or torture – obviously a human rights abuse – and murder or cruelty practiced by a private individual – a very serious harm, but distinct in kind from the former. What explains this difference? Although in each case a serious wrong has been committed, there is something normatively distinct about it being carried out by institutions with compulsory jurisdiction over us. It is the special duties that apply to state and other legal institutions in light of this fact that the concept of human rights picks out, rather than animating, as the authors suggest, “every branch of legal learning” (p. 16, emphasis in original). In turn, while legislative institutions can act in a general way to secure such rights by, for example, making international human rights instruments effective and enforceable as a matter of national law – as the UK Parliament did by bringing into force the Human Rights Act 1998 – their primary relationship to such rights, taken individually, must be as possible violator.

For these reasons, then, I think that the first major argument of Legislated Rights cannot succeed. Human rights place direct duties on political institutions only. What of its second, that the contemporary model of human rights scholarship and practice undervalues the role of the legislature in respecting our rights? This argument is severable from the one we have just considered: even if we believe human rights impose duties only on institutions we may still think that the current attitude towards legislative bodies – both on the part of the courts in their review of legislation and on the part of theorists who urge Bills of Rights limiting legislative choice as a constitutional necessity – is too aggressive, or too sceptical.

In what way do the authors suggest that this orthodoxy of scepticism has been established? There exists, they argue, a widespread and damaging view of legislative decision-making as preference-maximising, and in particular as preference-maximising in a way which aggregates the self-interested attitudes of the political majority. Given this conception of legislative action, the authors suggest, it becomes natural to see judicial review as necessary to protect the minority interest and, as such, a condition of political legitimacy in relation to the community as a whole. In opposition to this view the book develops a conception of legislative activity as principled decision-making in the public interest: “[T]he reason for authorising a legislature,” its authors hold, “is not to maximise preference satisfaction but to make provision for the common good, which requires that whoever legislates responds to good reasons for or against changing the law” (p. 90). Majoritarian decision-making – a process – is, they suggest, not to be confused with majoritarian preference satisfaction – an outcome. Moreover, legislative agents, when acting well, make their decisions based upon the good of the entire community and not merely those who voted them into office. In this way the opposition between the legislative mode of action and the protection of the minority interest turns out to be a false one.

What are we to make of this argument? It is true that lawyers and legal theorists often harbour a deep suspicion of democracy and hold undue reverence for law as a means to political progress. But is it possible that the authors, in attempting to correct for this error, have swung too far in the opposite direction? Is it possible in other words that, although rightfully opposed to a pathological conception of the legislature, they have romanticised or venerated the institution?

Assume for now that well-functioning legislative bodies aim to act in the common interest. That this is the legislature's aim, however, does not make securing this good the actual result of the legislature's action. Indeed, a large part of the courts’ role in scrutinising political institutions for potential rights violations is not to catch decisions that are intentionally opposed to individual rights but those which happen, inadvertently, to oppose them. It is worth noting in this regard that although the book pays particular and sensitive attention to the shortcomings of the courts in achieving their stated aim of protecting rights (see for example, pp. 145–46 on the Brown decision of the US Supreme Court) no similar attention is paid to this possibility in the case of legislative bodies. Nor does the book balance its careful case in favour of legislative decision-making as appropriate for dealing with polycentric matters with the shortcomings of legislatures in assessing the impact of general rules on the interests of the individual, especially where that individual is relatively invisible to the political process (although see pp. 188–92 for the argument that contemporary human rights law is unable to make up this deficit).

A second point here is that legislative bodies can and sometimes do act with the aim of naked preference satisfaction – playing to the base, as it is often described – and not just to satisfy the majority's preference, but the majority's self-interested preference. In a system of elected representatives, it can pay to do the former and one of the easiest ways to show that you are so doing is to do the latter. The book's authors do not ignore this possibility, but they relegate it to a secondary or ancillary position. Although they admit “that legislators … [may] favour a proposal for partisan advantage rather than for the common good” (p. 9), “the central case of legislative action” nonetheless “consists in reasoned deliberation to promote the common good” (p. 6). It is such a conception of the legislature that we should focus on, they suggest, when thinking about rights. But this argumentative strategy hardly seems reasonable when the aim of the book is reform of the real and not the ideal: its authors want us to shift our actual practices away from court protection as the paradigm of human rights law and towards a model which empowers the legislature. If they are to do so convincingly, however, they should do so in light of the realities of legislative decision-making – sometimes blind to its impact on individuals, sometimes focused otherwise than on minority claims or interests – not based upon a picture of the institution at its best. To hold the authors to this requirement, moreover, we do not need to claim with their adversaries that the legislature will necessarily act in terms of the majoritarian preference, only that it is sometimes incentivised to do so and might. Given this risk, the question then becomes whether the mechanism of judicial review – including its own problems of accountability, judicial overreach and the limits of court processes in dealing with polycentric matters – is a sensible trade-off. The question is helpfully sharpened by considering on whom the likely costs of things going wrong ought to fall; on institutions and relatively stable majorities with access to politics, or on those for whom the law may be the only means to secure their interests.