Contiene referencias bibliográficas

Within the two-step framework of basic rights adjudication, the first step asks whether the scope of a right has been infringed, and the second step looks at the justification for the infringement to assess whether a right was violated. Many scholars have offered theoretical accounts of the second, “justification,” stage, but there is widespread puzzlement about the practical point of the first, “scope,” stage. Against calls to either radically narrow or broaden the scope of basic rights, this article presents an account of the first stage that suggests a more moderate approach to the scope of basic rights and makes sense of its distinct normative significance. Drawing on Bernard Williams’s work on conflicts between liberty and equality, this article develops a novel understanding of “costs in political value” and argues that the expressive point of the two-step framework is to acknowledge and respect particularly grievous costs in political value. The doctrinal judgment that there has been a “basic rights infringement” is meant to express such acknowledgment and respect, even if these costs can be justified and there is no “basic rights violation.” This article offers practical guidance for thinking about inclusions and exclusions from the scope of basic rights and illustrates how the two-step framework mediates between legal and political discourse