Rights and Democracy: A Reconciliation of the Institutional Debate
in Tom Campbell, Jeffrey Goldsworthy and Adrienne Stone (eds.), Protecting Human Rights: Instruments and Institutions (Oxford University Press, Oxford, 2003) 135-57
Posted: 20 Nov 2013
Date Written: November 18, 2002
The interdependence of democracy and human rights is accepted within the international law sphere. Human rights guarantee the conditions necessary for the proper functioning of a democracy. Conversely, democratic institutions and systems of governance allow for the protection and promotion of human rights. When respect for human rights and democracy occur, they tend to occur together.
However, something is lost in the translation from international law to domestic law. Indeed, within a domestic setting, human rights may be regarded as counter majoritarian, particularly judicially enforceable human rights. Much of the counter-majoritarian view is attributable to two factors. First, the attitude that democracy can only mean majority rule places different, diverse, unpopular and minority interests in a precarious position. The majority is free to pay regard to, or to disregard, these interests as it pleases. Human rights, on the other hand, tend to protect and promote these interests. In this chapter, concepts and practices of democracy that accommodate rights protection and promotion will be explored.
Secondly, the impact on the power relations between the institutions of government when human rights protection is formally introduced into democratic systems causes tension. Because of the corrupting nature of absolute power, the separation of powers doctrine dictates the dispersal of power between the different arms of government. Separation of powers is tempered by the need for checks and balances, which requires mixed government. However acceptable the idea of mixed government is in general, the sharing of human rights responsibility between the arms of government is most controversial. Giving an unelected (and thus electorally unaccountable) arm of government the power to review the decisions of the elected (and thus electorally accountable) arms of government for vague, human rights purposes is viewed as anti-democratic. An exploration of the actual sharing of power under modern human rights instruments is instructive in allaying this anti-democratic critique. International human rights instruments, as well as the British Human Rights Act and the Canadian Charter of Rights and Freedoms, will be used to ground the theoretical discussion.
Keywords: Human Rights, Democracy, Institutional Protections for Human Rights
JEL Classification: K00
Suggested Citation: Suggested Citation