Human Rights
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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.
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Chapter 8: Recasting the relationship: human rights, democracy and constitutionalism as material topoi of legitimacy

Old Problems, New Possibilities

Euan MacDonald


My goal in this contribution is relatively straightforward: to sketch a plausible way of understanding human rights, democracy and constitutionalism in a manner that brings to light the ways in which they interrelate. More specifically, I intend to articulate a defence of a widely-held proposition: that, despite their many overlaps, each is in an important and basic sense in conflict with the others (albeit in different ways). In doing so, I don’t imagine that I shall be saying anything particularly new, but simply looking again at some old debates through a slightly different lens: namely, by recasting the relationship between them as that between competing material topoi – commonplaces – of legitimacy discourse. Throughout this piece, my principal engagement will be with the work of Jeremy Waldron, and in particular his claim – first advanced in the texts that became his Law and Disagreement in 1999, and since defended and developed in a number of works (most recently, of course, his contribution to the present volume) – that there can be no intelligible conflict between democracy and human rights. My task, thus stated, may seem improbably large, requiring as it does at least working definitions of some deeply contested concepts, such as ‘legitimacy’, ‘democracy’ and ‘constitutionalism’. To make this manageable, the definitions I offer below are intended as pragmatic, partial and peripheral in nature.

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