Human Rights

Human Rights

Old Problems, New Possibilities

Edited by David Kinley, Wojciech Sadurski and Kevin Walton

Reflecting on the various dichotomies through which human rights have traditionally been understood, this book takes account of recent developments in both theories of rights and in international human rights law to present new ways of thinking about some long-standing problems.

Chapter 7: Democracy and human rights: good companions

Jeremy Waldron

Subjects: law - academic, human rights, law and society, politics and public policy, human rights

Extract

The impression of antagonism between democracy and human rights is fostered, I suspect, by the association of human rights with the practice of judicial review. Many people (including me) believe that strong judicial review is a non-democratic practice sustained by anti-democratic sentiment. But some people support judicial review nonetheless. Because they think it appropriate to use a non-democratic institution to settle disputes about what rights we have and what they require, they conclude that the idea of human rights must be an un- or non- or anti-democratic idea and they expect supporters of democracy to be uncomfortable with it. I think they are wrong, on all counts. In this chapter I shall maintain that the appearance of antagonism between the two ideals is an illusion. I will not do so by arguing, with jurists like Ronald Dworkin, that there is nothing undemocratic about empowering judges to settle important issues that affect the legitimacy of democracy. Dworkin does not believe that democratic ideals oppose the assignment of final decisions in such matters to the judiciary. I think they do. Mostly I think it is high time to break the connection between rights and judicial authority, and to highlight once again the consonance and affinity between the idea of rights and the institutional practices of democracy. Analytically, there is something weird about the idea of a conflict between the principle of democracy and the idea of human rights. It is a sort of category mistake.

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