Abstract Judges’ role in adjudicating constitutional human rights is frequently criticised as undemocratic, fuelled by recent United States Supreme Court judgements on abortion, gun rights and the environment. But human rights of those without political power are insufficiently protected by decision-makers accountable only to majorities. This paper develops a model of human rights adjudication which enhances democracy rather than detracting from it. Human rights disputes should not be determined through bargaining, which reflects the power of different interests, but through ‘value-oriented’ reasoning, where parties adduce reasons aiming to convince others, while remaining open to persuasion. This is the essence of deliberative democracy. However, this is not open-ended deliberation. Although human rights are abstract, requiring further interpretation in particular contexts, they establish a ‘realm of meaning’ setting the boundaries within which deliberation can occur. This is bounded deliberation. Courts should enhance deliberative democracy by requiring decision-makers to demonstrate that they have addressed human rights questions in a value-oriented manner, rather than reflecting political, numerical or economic power. This includes ensuring a variety of perspectives and that marginalised voices are taken seriously. The paper uses examples from different jurisdictions, including India, South Africa and the US, to demonstrate the possibility of this model.
Sandra Fredman (Wed,) studied this question.