Building a Human Rights Culture in a Political Democracy: The role of the Northern Ireland Human Rights Commission
by Colin Harvey
There is another way to present this. In a political community like Northern Ireland there are established struggles for recognition and democratic inclusion. Underpinning these struggles is the right to participate and one wonders how much this is compromised by removing issues from public deliberation. If reasonable people disagree about the meaning of human rights then reasonable judges will also. The next step is to ask why we should then be beholden to the meaning of rights adopted in this forum. In making this assessment surely it does make a difference that we are talking about an unelected group of elite decision-makers. It may not be a Ireland. The purpose of human rights in Northern Ireland is to ensure both participation and protection welcome argument at present, but it remains a persuasive one. As is evident from what I have said here, the starting point for this essay is caution about the judicial role in the human rights sphere. If we place the judiciary on a pedestal we will be disappointed. My suggestion is that more attention should be focused on all the other legal and political channels which promote change. The Human Rights Commission is one good example. The intention here is not, of course, to exclude the courts. One could not do this without offending basic tenets of political democracy. They have a role to play. The ambition here is simply to provoke a critical dialogue. There is a danger that some human rights talk encourages an unreflective approach to politics and law and thus impoverishes political dialogue in the public sphere.6 And that is what is not needed in Northern.
1 See Jeremy Waldron Law and Disagreement (Oxford, Clarendon Press, 1999) chapters 10-13; Jürgen Habermas The Inclusion of the Other: Studies in Political Theory (Ciaran Cronin and Pablo De Greiff (eds.), Cambridge Mass, The MIT Press, 1998) p. 203.
2 See Paul Mahoney "Marvellous Richness of Diversity or Invidious Cultural Relativism" (1998) 19 HRLJ 1, at 3: "The Convention is grounded on a certain political philosophy, namely that political democracy is the best system of government for ensuring respect of fundamental freedoms and human rights. Any theory of interpretation or review by the Court must be compatible with that basic underpinning of political theory." Illustrating that it is possible in a human rights instrument to respect the fundamental importance of political democracy.
3 For a definition of the cynic see Friedrich Nietzsche Beyond Good and Evil (Oxford, Oxford University Press, 1998, trans. Marion Faber) p. 27: "...I mean by the so-called cynic, those people who simply acknowledge what is animal-like, common, the 'rule' about themselves and still have enough spirituality and excitability to need to speak about themselves and their kind in front of witnesses..."
4 See Colin Harvey "Agreement's rights promise must be fulfilled" The Irish Times, 24 February 2000.
5 Friedrich Nietzsche supra n. 3 p. 8. Cf. Richard Rorty Philosophy and Social Hope (London, Penguin Books, 2000) p. 98: "Dewey the romantic would have been delighted that the courts sometimes tell the politicians and the voters to start noticing that there are people who have been told to wait for ever until a consensus emerges - a consensus within a political community from which these people are effectively excluded." Later in this work (p. 119) Rorty argues that Habermas, for example, is effectively reviving Dewey's social democratic approach.
6 Cf. Mary Ann Glendon Rights Talk: The Impoverishment of Political Discourse
(New York, Free Press, 1991); Allan C. Hutchinson Waiting for Coraf: A Critique
of Law and Rights (Toronto, University of Toronto Press, 1995). |
