Adjudication as Accountability
Adjudication as Accountability
A Deliberative Approach
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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