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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: 28 February 2021

Adjudication as Accountability

Adjudication as Accountability

A Deliberative Approach

Chapter:
(p.105) 5 Adjudication as Accountability
Source:
Accountability in the Contemporary Constitution
Author(s):

Sandra Fredman

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199670024.003.0005

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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