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Accountability in the Contemporary Constitution$
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Nicholas Bamforth and Peter Leyland

Print publication date: 2013

Print ISBN-13: 9780199670024

Published to Oxford Scholarship Online: January 2014

DOI: 10.1093/acprof:oso/9780199670024.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 20 October 2021

Adjudication as Accountability

Adjudication as Accountability

A Deliberative Approach

(p.105) 5 Adjudication as Accountability
Accountability in the Contemporary Constitution

Sandra Fredman

Oxford University Press

This paper argues that the role of human rights adjudication should be to enhance the deliberative dimension of democracy by insisting that human rights decisions be taken in a deliberative manner. The paper follows Habermas in distinguishing between interest-governed and deliberative decision-making. It is argued here that, while there is room for both in a democracy, interest-based decision-making is not suitable for human rights. Instead, a model of ‘bounded deliberation’ is posited, where human rights decisions should be made within the bounds of a human rights framework which itself has been the product of prior consensus. Courts should augment the deliberative dimension of democracy by insisting that decision-makers be in a position to persuade the court that they have fulfilled their human rights obligations, account being taken of room for reasonable disagreement. A Bill of Rights, properly constructed, should act as a mechanism for accountability for both the legislature and the judiciary.

Keywords:   human rights, accountability, deliberative democracy, human rights adjudication, Habermas, bill of rights, deliberative decision-making, interest-based decision-making, bounded deliberation

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