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Waldron, Jeremy --- "Democracy and human rights: good companions" [2013] ELECD 1270; in Kinley, David; Sadurski, Wojciech; Walton, Kevin (eds), "Human Rights" (Edward Elgar Publishing, 2013) 145

Book Title: Human Rights

Editor(s): Kinley, David; Sadurski, Wojciech; Walton, Kevin

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781781002742

Section: Chapter 7

Section Title: Democracy and human rights: good companions

Author(s): Waldron, Jeremy

Number of pages: 25

Abstract/Description:

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.