Building a Human Rights Culture in a Political Democracy: The role of the Northern Ireland Human Rights Commission
by Colin Harvey
From: Human Rights, Equality and Democratic Renewal in Northern Ireland edited by Colin Harvey
Hart Publishing 2001
Enriching political democracy: human rights, law and mistrust
Before embarking on an outline of the work of the Commission it is worth raising some questions about the protection of human rights. There is a tendency in the literature of human rights law to glorify judicial protection. The courtroom, so it is argued, is the forum of principle where rational argumentation can take place. In such a forum rights are, it is supposed, more likely to be protected by judges who are not subject to the demands of populism and majoritarianism. This is used very often in arguments about minority rights. It is said that judicial protection is important precisely because rights matter regardless of the majority view. This justification of judicial intervention is convenient for judges also, because here they find a suitably noble justification for their role in a modern democracy. There is, however, something deeply disturbing about the reasoning which underpins such arguments. It reveals a mistrust of democracy and of the citizens who function within that democratic structure. The obvious response is that the experience of democracy in Northern Ireland has not been a good one. And this is undoubtedly correct. However, the reasoning contains the seeds of a profound pessimism about humanity. It is effectively ruling out the possibility of reshaping democracy, and the capacity of people to alter their behaviour to reflect human rights considerations. The surprising thing is that the logic conflicts with the reasons offered for thinking in terms of rights in the first place.1 Rights-thinking is said to matter because of a belief in the autonomy of individuals. Thinking in rights-terms is thought to be important because we value the autonomy of individuals. Often when the move is made to consider enforcement this respect for autonomy turns into a profound distrust. The autonomous individual, who provided the justification for the theory of rights, now becomes the main danger. Can the autonomous individual be trusted to do the "right thing", we might say. The point I would make is that it is perfectly possible to believe in human rights protection but be sceptical of the merits of exclusively judicial enforcement and thus to believe in the primacy of political democracy.2 We should be sceptical or "cynical" about placing our faith in the judiciary to promote progressive politics.3 As a body of men (and it usually is men) they have not shown any great attachment to progressive politics.4 This is why innovations, such as Human Rights Commissions, can be so important. In Northern Ireland the Human Rights Commission idea formed part of the final settlement, thus giving added legitimacy to its role. It is, however, still a means to an end, and not an end in itself.
The stakes are raised in this debate when we then talk about constitutional
rights, or those rights which are granted special protection within a legal
system. This has become an issue in Northern Ireland with the proposed adoption
of a Bill of Rights. The assumption tends to be that fundamental rights
deserve special protection and thus should be removed from the normal channels
of legislative amendment. In effect, the argument is that such rights should
be given a higher status and thus shielded from normal processes of deliberation.
This may seem, at first glance, a wise option given the problems of Northern
Ireland. Where there have been human rights abuses, and severe disagreements
about the meaning of rights, it is perhaps understandable that closure is
sought in the courtroom. When political life appears indeterminate and chaotic
law can seem to bring the certainty of decision. This decisionism is often
lauded as one of law's chief merits. We are told that at some point there
must be a reasoned decision and who else but the modern judiciary would
we turn to? This idea of detachment is superficially appealing but few can
now doubt the situatedness of judges and lawyers in the political struggles
that rage in modern democracies. Nietzsche talked of philosophers as "advocates who refuse the name" whose idea of truth was an "abstract version of their heart's desires".5 The judge, like the philosopher, is such a situated institutional
actor whose judgments are again tied to his "heart's desires". The difference
springs from the institutional context of judging and not the act itself.
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