Is “human rights law” the framework of democracy?
Updated on 06 March 2023
Ms. Shirin EBADI, an Iranian human rights lawyer who received the Nobel Prize in 2003, has written an occasional piece (https://bit.ly/157Bvmw) – probably on the occasion of the “Nobel Women’s Initiative Conference” in Belfast.
The text is canonical: it reflects and summarizes mainstream views. I’ll discuss this text to highlight what I consider troublesome thinking underpinning the discussion on the role of human rights.
“Democracy, in its classical definition, means the rule of the majority.” This is the first sentence in her text, and the premises on which she builds her argumentation. I do not know where she got this idea from, but to me this is not what democracy is all about.
In Athens, there were no parties or proper “elections” – just a series of votes cast within a restricted oligarchy of citizens on individual issues (women and slaves – the majority – need not utter a word). Prior to Greek democracy, the Romans had developed a complex system of checks and balances framing the voting (see my 162 blog entry https://bit.ly/157Bvmw). Underpinning all discussion about democracy, in either case, is the idea that “winning elections” is a means and part of a never-ending process toward the goal of making policies for the common weal. True, the winners have the right of initiative. It remains a “common” endeavor, however, and “winners” must try to be inclusive.
Referring to my 234 blog entry (https://bit.ly/157Bvmw ), I have argued there for the existence of “social logic” – a more or less coherent set of beliefs or principles – underpinning the social system and allowing it to evolve harmoniously. While the “winners” of an election may have the lead in interpreting it and choosing policies to fit the context, they are in the end bound by the social logic and by the respect they owe to all members of the group. Any such social logic, then, is strictly internal to the social system and would have no universal character.
Ms. EBADI, however, argues: “Democracy has a framework that must be observed. What is the framework of democracy? The framework of democracy is human rights laws.” For her, the “framework” is universal, hence external to the social system. Never mind that the terms “framework” and “laws” are contradictory. A law is a social construct – a collective intentionality somehow subject to the approval of the social actors. It cannot be a universal. More cogently: I know of genetically founded universals. Primatologists have observed empathy in all apish cousins, so the assumption of a genetic presupposition is fair. I have no evidence fur cultural universals – unless they are of religious origin and transcendental.
Ms. EBADI fails to indicate how the “human rights framework” emerged. To her it is axiomatic, or self-evident. As a political theory, however, “human rights” is a contemporary development. One is strained to bestow universal and timeless character. The claimed universal character puts human rights in the class of revealed principles. The only difference is that there is no Moses to carry down from Mt. Sinai the Ten Human Rights, or how many they may be.
Transcendentalism has consequences. A revelation is an open invitation for someone to show up and reveal/interpret it. There is no dearth of candidates on this score, all high-minded, mind you, and ready to decide what’s suitable for you and me. I’m also amazed at the proliferation of “human rights” being asserted directly or deduced from first principles. Transition to “animal rights” is an emergent phenomenon.
More problematic aspects arise. A right is entitlement – it may not be questioned or subject to deliberation. A “right” is a “non-negotiable demand” so dear to the ’68 generation. Furthermore, a framework is a framework is a framework. It must be directly applicable, either prescriptively or at least proscriptively. Ms EBADI is quite clear on this point: “Pretexts for violation of human rights as cultural relativism, religion and ideology, are not acceptable”. She goes on. “No country can be a quasi-democracy” – leaving it open where the boundary between real-existing democracy and eutopia lies.
I would wholeheartedly agree with Ms. EBADI on there being “different degrees of democracy”, and on “democracy requires constant attention,” lest it veer into oligarchy or autarchy (with a human face these days). Contrary to her, however, this is not a matter of asserting universality and transcendent rights, but a matter for ongoing deliberation. It is a not an individual’s right, it is a common responsibility.
 The last politician I heard extolling this interpretation was Silvio BERLUSCONI of Italy. I don’t think Ms. EBADI had him as political thinker in mind.
 Samuel MOYN (2010) : The last utopia. Human rights in history. Harvard University Press, Cambridge.