Old Problems, New Possibilities
Edited by David Kinley, Wojciech Sadurski and Kevin Walton
Chapter 7: Democracy and human rights: good companions
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.
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.