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Rights as Democracy? A short response to Bellamy

Last week a few members of King’s College London held the first session of our reading group on Law and Social Sciences. We discussed Richard Bellamy’s “Rights as Democracy” (2012), and we also read Isaiah Berlin’s seminal “Two Concepts of Liberty” (1958) with Skinner’s critique, “A Third Concept of Liberty” (2002).

In his article, Bellamy opposes the traditional liberal justification of human rights as a set of prepolitical liberties and entitlements. Bellamy conceives rights in line with the republican notion of non-domination and claims that they require a democratic justification, which is by definition a political process. From that premise Bellamy works out the argument for a “rights-based judicial review of legislation”, that takes judicial hermeneutics away from professional and non-democratic courts and gives this power to “the people themselves” (I am indebted to my friend Donald Bello Hutt for introducing this concept to me).

For Bellamy, a political process to claim and justify rights must possess three important features. “First, it must show equal respect for the different views of individuals as rights bearers. Second it should also demonstrate equal concern for their capacity to employ their rights on the same terms as others. (…) Third, it will have to answer to the ‘traditional purpose’ of rights as means for holding power to account and marking its limits”.

I must start by saying that I find Bellamy’s argument both powerful and persuasive. Disagreements require a political process to be dealt with and in principle I find democracy as valid as inherent dignity or liberty to lie at the core of a normative defence for human rights. Liberal scholars like Dworkin (1978) and Jones (1994) see “rights as trumps”, i.e., in terms of non-interference or as priorities over any other prerogative or benefit. This approach puts the accent on the individual as a rights-bearer and highlights the supremacy of the negative dimension of freedom (“freedom from” rather than “freedom to”). As I wrote some time ago, human rights are not only the shield individuals can make use of to protect themselves from an inherently hypertrophic public force. Particularly when human rights are most needed, human rights become a democratic impulse, a mobilising force and a source of solidarity. Bellamy’s understanding of “rights as democracy” fits within this interpretation better than the traditional liberal view.

Having said that, grounding human rights on democracy is not exempt of problems. I will pinpoint four of them. First, Bellamy claims that in a democracy political parties tend to move towards median positions and would therefore agree on a moderate view in support of human rights. However, this is an empirical question and in fact recent political developments in Europe confirm that right-wing populist forces can have a strong influence shifting the median towards intolerant and xenophobic positions that have no sympathy for human rights. Secondly, if democracy is the basis of rights, we must agree upon the political community in which the democratic process must take place. Bellamy seems to hold the State in great esteem and from his text one may conclude that the nation-state would be the community to which democracy must speak. However, some would respond that if rights are universal, humanity as a whole would be the only valid community, while others would oppose that, in order to be locally relevant, the community must be as small as possible. Thirdly, sometimes entirely undemocratic bodies or processes play a significant role in promoting a human rights-based policy. For example, Andrew Moravcsik (2001) writes about how European countries moved towards the abolition of the death penalty between the 1950s and the 1970s even though their public opinion was still as divided on the issue as the American one. However, nowadays European polls show little or no support for the death penalty (nearly inexistent in Europe, with the only exception of Belarus), while the issue remains very controversial in the US. The move of European leaders some decades ago may have gone ahead the democratic wishes of their people at the time, but from a human rights perspective I am just glad they did it that way. Finally, Bellamy speaks of democracy as an ideal concept but he does not give any clues about what a democratic process of rights-identification would look like. The truth is that he did not promise to deliver either, but the problem of not operationalising the meaning of democracy is self-evident: What is the meaning of human rights while we wait for this utopian democracy?

Bellamy’s proposal for democracy-based human rights is powerful but it leaves some important points unanswered. Nevertheless, his message must not fall on deaf ears because he is diving into one of the key points for human rights advocacy: The importance of participation in rights-framing and strategic decision-making. Human rights must be universal but their ultimate strength depends upon advocates’ ability to make them locally relevant. We must go beyond an understanding of democracy at the borderline of human rights, as the European Convention of Human Rights does when it accepts limitations of rights only when they are “necessary in a democratic society”. Democracy is not by definition a threat to human rights. In fact, it may very well be a strong ally. Bellamy’s answer does not square the circle but his question is one of those anybody interested in human rights must take very seriously.

Koldo Casla

@koldo_casla



2 Responses to Rights as Democracy? A short response to Bellamy

  1. Thanks for the comments and the acknowledgments Koldo.
    Great analysis. My comments will refer exclusively to the four difficulties .
    1.You are right. It is an empirical question, and the polarization of political parties in Europe speaks against the epistemic competence of majorities to enforce human rights.However and notwithstanding, we have to bear in mind that the theoretical intention of Bellamy’s work is to offer a normative account in favor of majorities and against the traditional vision of the judiciary as a countermajoritarian institution. Even if one grants your argument,the same difficulty applies to the judiciary because judges can also abridge human rights. Tu quoque, but since both majorities and judges are even in this regard, we need to move toward normative arguments such as legitimacy, where the judiciary is deficient and majorities score high(er)
    2. The issue of determining the subject and the extension of the political community would still remain, independently of the fact that we can or can’t come up with an answer for who’s the adjudicator and ultimate interpreter of human rights.Actually, we face this problem now, when judicial supremacy is the norm.
    3.Maybe two things to be said here. A)For Bellamy’s more general purpose of justifying HR linked to Pettit and Skinner’s concept of liberty as non-domination,is enough to show that being undr the mere aknowledgment that one is under somebody else’s power is a limitation of liberty in that sense. That is, B) to champion the judiciary as ultimate intepreter of rights is to live under the rule of Plato’s benevolent dictator or philosopher king, who is able to make decisions in a better fashion than mobs; aristocracy vs ochlocracy.This regimes (juristocracies) can only find rational justification, as you point out, in outcome-related reasons, not process-related reasons. We assumme that because good decisions have been made by countermajoritarian institutions, they will countinue to produce those good results, but this is not only a fallacy ( from concret cases we can’t obtain general conclusions as Aristotle reminds us – also see Popper on falsiability, and the long list of cases where judges have decided against what we could consider an enhancement and protection of HR) , but an instrumental justification of democracy.It is equivalent to say to democracy is justified only insofar as it produces good outcomes.

    I need to think more about number 4.

  2. Thank you, Donald! We’ll talk about the fourth point and all the others soon. Take care.
    Koldo

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