The Journal of Human Rights

Human Rights and Democracy: Marking the Boundaries of Community

Jarna Petman

Volume 14, Issue 1 , June 2019, , Pages 123-150

https://doi.org/10.22096/hr.2019.111087.1149

Abstract

Within the New World Order, there is one instance that is deemed responsible for the globalization in human rights, one court whose judgments are reportedly increasingly quoted by national ... Read More Within the New World Order, there is one instance that is deemed responsible for the globalization in human rights, one court whose judgments are reportedly increasingly quoted by national courts all over the world and accepted by them: the European Court of Human Rights has been hailed as a ‘sort of world court of human rights’. At the level of general expressions and abstract language, human rights may, perhaps, be universal. But as soon as they turn into actual claims of rights, made in particular contexts to defend or criticize particular distributive choices, they become an effect of politics. There is no authoritative catalogue of rights that would be politically innocent: in an agnostic world, rights cannot be but legislative constructions, constantly referring back to alternative notions of the political good. In every social conflict, the claims of opposing sides may be portrayed as rights claims: my right of freedom against your right to security. The boundaries of freedom and security are drawn in accordance with cultural and political presumptions about the values that a good society prefers. And the process whereby an aspect of reality comes to be characterized in terms of rights is not dictated by any essential nature of the matter, either. It is a matter of political preference: only certain visions of the good life merit being accorded the level of protection that the classification as a ‘right’ entails. Moreover, the rights-language is imprecise and indeterminate in ways that defer back to policy concerns. Even a core right like the right to life has no meaning independent of the way it is interpreted by the relevant authorities. And, like all legal rules, human rights cover cases we did not wish to cover and leave uncovered cases that we think should have been covered Accordingly, rights must always be supplemented with exceptions. The scope or the criteria for the application of the exception are never clearly defined, however. Within the European Convention on Human Rights, the relationship between rights and the power to derogate from them is conditioned by what is deemed ‘necessary in a democratic society’ — a contextual and politically loaded criterion, surely. Rights, then, are a product of a political society. Given the ethos of international law (‘law against politics’), to say that human rights are the effect of politics, is nothing short of a scandal. But, let me emphasize from the start that I do not consider the banal administration of rights language a perversion or a scandal — quite the contrary. What I wish to assert is that the idea of human rights may bring emancipation precisely because it is the stuff of politics. This is what I shall do in my paper: using the case law of the European Court of Human Rights as my example, I shall look at the various ways to come to terms with bureaucratization and the possibilities of reserving the idea of human rights as a source of powerful critique of existing social institutions and practices. I also want to reflect on the consequences that the bureaucratization of human rights has on the current project for the New World Order, on the liberalism of certainties.

Promoting Peace, En‘forcing’ Democracy? The European Court of Human Rights’ Treatment of Islam

Edel Hughes

Volume 11, Issue 2 , January 2017, , Pages 129-154

https://doi.org/10.22096/hr.2016.29854

Abstract

Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere ... Read More Contemporary Europe is undoubtedly a largely secular region where the notion that secularism and ‘progress’ are intertwined has long held sway. Religion in the public sphere is, for many Europeans, associated with emergent or conservative societies, whereas secularism is equated with modernism and seen as an indispensable component of modern governance. Recently, both domestic and European Court of Human Rights (ECtHR) case-law has highlighted the obvious tensions that arise in the manifestation of religion in the European public sphere. While Article 9 of the European Convention on Human Rights affords everyone the right to freedom of thought, conscience and religion (while allowing for certain limitations as imposed by domestic authorities), in matters related to religion, ECtHR has adopted a deferential attitude towards domestic authorities in the determination of the parameters of this right. This is reflected in the fact that it was not until 1993, some thirty-five years after the Court commenced operating, that a violation of Article 9 of the Convention was found. The Court’s jurisprudence on the Article is therefore somewhat troubling and nowhere is this more aptly illustrated than in the jurisprudence relating to the wearing of the Islamic headscarf. Recent case-law in fact suggests that in that the wearing of the headscarf is viewed both as being incompatible with the principle of gender equality and in direct opposition to the principle of secularism. Through the lens of recent Article 9 jurisprudence, this paper will assess the trends emerging in the European Court’s consideration of Islam. Discussion of relevant cases will include Dahlab v. Switzerland, Karaduman v. Turkey, Leyla Şahin v. Turkey, Refah Partisi (The Welfare Party) and Others v. Turkey as well as analysis of cases occurring at the domestic level, most notably the Teacher Headscarf Case of the German Constitutional Court and the English decision of R (on the application of Begum (by her litigation friend, Rahman)) v. Headteacher and Governors of Denbigh High School. This paper also seeks to challenge the ECtHR reasoning in the area of expression of religion (and particularly where that religion is Islam) by analysing the question of religion in the public sphere in the broader European context. There is in fact increasing evidence to suggest that Europe is undergoing a period of de-secularisation, a reality routinely ignored by the European Court of Human Rights.

Peace, Justice and Democracy in the Multiethnic Societies: Consociational Democracy with Emphasis on Comparative study of Iraq and Bosnia

Sattar Azizi

Volume 09, Issue 1 , May 2014, , Pages 23-48

Abstract

Restoration and maintaining peace, justice and democracy in the human societies is a matter that it`s achievement is too difficult due to economic and social gaps. It is obvious that ... Read More

Anti-Foundationalism, Deliberative Democracy and Universal Human Rights

Fabrizio Trifiro

Volume 05, Issue 1 , April 2010, , Pages 3-18

Abstract

The paper argues that an approach to democracy that combines an anti-foundationalist epistemology and a deliberative political and moral stance will enable us to solve the increasing ... Read More

The Relationship between Justice, Democracy and Peace in Plato’s Republic

Hassan Fathi

Volume 04, Issue 2 , October 2009, , Pages 3-20

Abstract

Without doubt, Plato’s Republic is one of the most influential works in the history of philosophy, specially, in philosophy of politics. Although we find all branches of philosophical ... Read More

Anti-Foundationalism, Deliberative Democracy and Universal Human Rights

Fabrizio Trifiro

Volume 04, Issue 2 , October 2009, , Pages 1-12

Abstract

No Abstract No Abstract Read More

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Main Subjects = Democracy

Human Rights and Democracy: Marking the Boundaries of Community

Abstract

Promoting Peace, En‘forcing’ Democracy? The European Court of Human Rights’ Treatment of Islam

Abstract

Peace, Justice and Democracy in the Multiethnic Societies: Consociational Democracy with Emphasis on Comparative study of Iraq and Bosnia

Abstract

Anti-Foundationalism, Deliberative Democracy and Universal Human Rights

Abstract

The Relationship between Justice, Democracy and Peace in Plato’s Republic

Abstract

Anti-Foundationalism, Deliberative Democracy and Universal Human Rights

Abstract