Introduction to Lecture 3

This lecture considered the limited ways in which injury or harm is understood, particularly in US political and legal culture. The concern is with the inability of contemporary constitutional or political theory to interpret the failure of collective or state action as constituting a harm worthy of recognition and compelling remedial action. In this lecture, I am interested in the norms and values that inform the principles governing the exercise of action and restraint on the part of the state when it acts as sovereign and in its relationship with individuals as political or legal subjects.

The idea that constitutional injury or harm can be caused by state inaction is not well-developed in US political and legal culture. Indeed, the norms and values informing our ideas of appropriate actions on the part of the state, as well as defining the corresponding entitlements of political or legal subjects, are firmly anchored in the principle of non-intervention or inaction. The spectre of state or public interference with individual privacy or liberty interests haunts the American constitutional order and shapes what is perceived as constituting injurious state action. Restraints on the state are viewed as imposed by the terms of the social contract, which is often referred to as creating a system of ‘negative rights’. By contrast, ‘positive rights’ would place affirmative obligations on the state (and/or others) to act in the interest of others.