Deliberative Democracy and Human Rights

Deliberative Democracy and Human Rights

Harold Hongju Koh
Ronald C. Slye
Copyright Date: 1999
Published by: Yale University Press
Pages: 328
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  • Book Info
    Deliberative Democracy and Human Rights
    Book Description:

    In this important collection of writings, leading legal and political thinkers address a wide array of issues that confront societies undergoing a transition to democratic rule. Bridging the gap between theory and practice in international human rights law and policy, the contributors continue discussions that were begun with the late Argentine philosopher-lawyer Carlos Santiago Nino, then extend those conversations in new directions inspired by their own and Nino's work.The book focuses on some of the key questions that confront the international human rights movement today. What is the moral justification for the concept and content of universal human rights? What is the relationship among nation-building, constitutionalism, and democracy? What are the political implications for a conception of universal human rights? What is the relationship between moral principles and political practice? How should a society confront what Kant called radical evil? And how does a successor regime justly and practically hold a prior regime accountable for gross violations of human rights?

    eISBN: 978-0-300-12873-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-viii)
  3. Part One Introduction
    • Deliberative Democracy and Human Rights: An Introduction
      (pp. 3-20)
      Harold Hongju Koh and Ronald C. Slye

      Half a century after its birth, the modern human rights revolution stands at a crossroads. At this writing, the first international criminal trials since Nuremberg have commenced in The Hague and Arusha; a treaty to create a permanent international criminal court has been ratified by dozens of countries; numerous countries are prosecuting war criminals and other human rights abusers; United States federal courts have awarded millions of dollars in damages against individuals who have violated well-established norms of international human rights law; and governments from Latin America to Eastern Europe to Africa are struggling to make the transition from regimes...

    • Chapter 1 The Death of a Public Intellectual
      (pp. 21-30)
      Owen Fiss

      In 1976 the military seized power in Argentina and, in the name of maintaining order and combating left-wing terrorism, established a heartless and brutal dictatorship that was without parallel in Argentine history. The reign of terror included kidnapping, torture, rape, and murder, and led to the death or disappearance of some nine thousand persons suspected or accused of being subversive. In the early 1980s, the generals sought to counter a decline in their support by trying to retake the Malvinas Islands from the British by force, but they failed in that endeavor and were soon defeated at the hands of...

  4. Part Two Ethical Bases of International Human Rights
    • Chapter 2 Personal Rights and Public Space
      (pp. 33-48)
      Thomas Nagel

      I was once at an international seminar devoted substantially to the discussion of individual rights, their moral basis, their boundaries, and their relation to other values, moral and political—the aim being to present recent developments in American political theory to interested parties from elsewhere. The Americans in the group were much concerned over such issues as freedom of expression for racists, access to pornography, affirmative action for women and minorities, and restrictions on abortion. After listening for a while to the admirably subtle discussion of these issues, some of the other participants began to grumble. They pointed out that...

    • Chapter 3 In the Beginning Was the Deed
      (pp. 49-60)
      Bernard Williams

      Carlos Nino was a brave man and an admirable philosopher who gave his country notable service and stood against a tyrannical and corrupt regime on the basis of a robust belief in liberal political values and universal human rights. In his own mind and in his life, his philosophy and his political values were intimately linked. His philosophy not only expressed his political values, but firmly claimed a certain type of foundation for them. He was deeply opposed not only to those who rejected liberal values but to those, such as Richard Rorty and myself, whom he saw as trying...

    • Chapter 4 Autonomy and Consequences
      (pp. 61-70)
      Martin D. Farrell

      Thomas Nagel has shown—in a way, I believe, that is compatible with Carlos Nino’s thesis—the importance of some individual rights which go beyond those considered basic. And Bernard Williams has sustained—in a way, I am sure, that is incompatible with Nino’s thesis—that the application of any political theory depends on some factual conditions.

      I am not going to dispute their conclusions, because what I find in common to both papers is a gap: what is missing in them is the intellectual influence of their authors on the ethical theory of the man who prompted their remarks....

    • Chapter 5 On Philosophy and Human Rights
      (pp. 71-78)
      Elaine Scarry

      In his book on elegy, Peter Sacks looks at elegiac poems from the Greeks through Spenser, Milton, Shelley, Hardy, and Yeats. Sacks observes how often and closely “the elegist will try to imitate the admired qualities” of the person who has died: at the center of these poems is the work of “elegiac emulation.”¹ Elegiac emulation has clearly shaped the essays in this book, for they are framed by the set of subjects to which Carlos Nino devoted himself—human rights, deliberative democracy, the problem of punishment. The work of elegiac emulation is also, more specifically, visible in the chapters...

  5. Part Three Nation-Building, Constitutionalism, and Democracy
    • Chapter 6 The Moral Reading and the Majoritarian Premise
      (pp. 81-115)
      Ronald Dworkin

      There is a particular way of reading and enforcing a political constitution that I call the moral reading. Most contemporary constitutions declare individual rights against the government in very broad and abstract language, like the First Amendment of the United States Constitution, which provides that Congress shall make no law abridging “the freedom of speech.” The moral reading proposes that we all—judges, lawyers, citizens—interpret and apply these abstract clauses on the understanding that they invoke moral principles about political decency and justice. The First Amendment, for example, recognizes a moral principle—that it is wrong for government to...

    • Chapter 7 Constitutionalism, Democracy, and State Decay
      (pp. 116-135)
      Stephen Holmes

      The hazy mirror with which philosophy reflects its times has cracked under the impact of the collapse of communism and the end of the Cold War. Basic concepts and norms, models and paradigms, anxieties and aspirations, have had to be and are being fundamentally challenged in light of the dizzying and unforeseen events of the past decade. As a Polish journalist recently remarked, in 1989 most of us thought that good had conquered evil (that we had achieved a liberal revolution). What we have instead is a return to Chicago in the 1920s.

      The intellectual and moral shock of this...

    • Chapter 8 Constitutionalism and Democracy
      (pp. 136-142)
      Alberto Calsamiglia

      Constitutions must prevent simultaneously tyranny and anarchy. In his contribution to this volume, Stephen Holmes focuses on the problem of the decay of the state from the point of view of the stability of the state. He claims that a society must address the Hobbesian problem before the Lockean solution looks attractive. I would like to suggest that the situation of anarchy or decay of the state is not always worse than the situation of tyranny under Hitler or Stalin. It can be argued that states are only legitimate if they provide stability and respect for human rights.

      I assume...

    • Chapter 9 Group Aspirations and Democratic Politics
      (pp. 143-154)
      Ian Shapiro

      The question “Should groups have rights to self-determination?” is ill put. Proposed rights cannot be evaluated without reference to the contexts in which they are asserted or to the purposes for which they will be exercised. I believe a further constraint is also in order: that groupbased aspirations be rendered compatible with democratic politics. Because this seems to be the most fundamental issue, I begin with it, turning second to questions of context and purpose, and concluding with some remarks on institutional redesign.

      In most countries of the modern world, democracy exhibits a nonoptional character that other political ideals lack....

  6. Part Four Democracy and Deliberation
    • Chapter 10 Creating the Conditions for Democracy
      (pp. 157-189)
      Irwin P. Stotzky

      In the past two decades, many Latin American and Eastern European nations have been involved in a remarkable political experiment. The historically ubiquitous authoritarian regimes, usually in the form of military juntas and dictators, have gradually been replaced by constitutional democracies. This process—usually referred to as the transition from dictatorship to democracy—is, however, far from complete. Indeed, it remains much debated in concept and fragile in practice.

      The expansion of interest in democracy in diverse parts of the world has given rise to the need to examine, in greater depth, the varied forms that law and institutions esigned...

    • Chapter 11 Power Under State Terror
      (pp. 190-209)
      Jaime Malamud Goti

      In this chapter I describe how political power may be manifested in societies subjected to long-term state terror. I lay out the thesis that state sponsored terrorism molds a peculiar kind of political power, one that destroys social communication, warps our notion of authority, and perpetuates the very terror under which it developed. Looking at the years surrounding the 1976–1983 military regime in Argentina suggests that the eruption of state-sponsored violence represents merely one facet of a more pervasive trend, more deeply characteristic of that violent political culture. State terror in Argentina can be traced from the early colonial...

    • Chapter 12 Deliberation, Disagreement, and Voting
      (pp. 210-226)
      Jeremy Waldron

      The opening pages of Carlos Nino’sConstitution of Deliberative Democracyare dominated by a contrast between thepluralistmodel of democratic decision-making and his own favoreddeliberativeconception.¹ The prime virtue of deliberative democracy, according to Nino, was its capacity “totransformpeople’s interests and preferences” through the mechanism of collective deliberation.² The method of deliberative dialogue and majority decision-making has, he said, “a greater tendency to impartial solutions than any other method of reaching decisions which affect the group, such as that provided by the reflection of an isolated individual.”³ In a democracy, everyone is entitled to a hearing....

    • Chapter 13 Deliberative Democracy and Majority Rule: Reply to Waldron
      (pp. 227-234)
      Amy Gutmann

      One of Carlos Nino’s central concerns was to defend a kind of democracy that was more deliberative than conventional theories of democracy recommend or perhaps even admit. Jeremy Waldron, by contrast, moves us away from any concern about the quality of political deliberation in democracy to focus on the value, first, of voting, and second, of majoritarianism in democracy. Waldron argues that voting is essential to provide deliberative democracy with the transformative effect on opinion it seeks. Voting is the decision-making moment of deliberation. But Waldron apparently does not think that the transformative effect of deliberation bears any positive relation...

    • Chapter 14 The Epistemic Theory of Democracy Revisited
      (pp. 235-246)
      Carlos F. Rosenkrantz

      Irwin Stotzky writes about the virtues of a conception of democracy in a way that draws approvingly upon the work of Carlos Nino. To counterbalance Stotzky’s contribution to this volume, I offer here a critique of Nino’s philosophy. This is so not only because arguments and counterarguments better pave the way toward truth, but also because Carlos Nino would have preferred to be antagonized rather than praised. Carlos always welcomed criticisms. Those who met him know the reason: criticisms were his Archimedean points for new and better defenses of his always deep and interesting ideas.

      I want to summarize the...

    • Chapter 15 Democracy and Philosophy: A Reply to Stotzky and Waldron
      (pp. 247-254)
      Paul W. Kahn

      Reading Carlos Nino’sConstitution of Deliberative Democracy,I could not help but be impressed with the deeply personal character of the inquiry Nino was pursuing. He was, as Irwin P. Stotzky has said, a public intellectual. As long as I knew him, he always seemed to be doing two things: pursuing ideas as an intellectual committed to unconstrained theoretical inquiry, and participating in Argentine politics as that state sought to construct a democratic political life. At the heart of his work on deliberative democracy is a single question: Can a moral philosopher be a democrat? He was determined to think...

  7. Part Five Confronting Radical Evil
    • Chapter 16 Punishment and the Rule of Law
      (pp. 257-271)
      T. M. Scanlon

      This essay will consider how some central issues that Carlos Nino discussed in his writings on the philosophical theory of punishment are relevant to the difficult empirical and political problem of building a legal order that preserves the rule of law and provides remedies for victims of past human rights abuses. Carlos Nino was remarkable in combining philosophical scholarship with important and courageous contributions to this difficult political problem. My first contact with him came when he submitted his article “A Consensual Theory of Punishment” to the journalPhilosophy and Public Affairs,of which I was then an associate editor....

    • Chapter 17 From Dictatorship to Democracy: The Role of Transitional Justice
      (pp. 272-290)
      Ruti Teitel

      Though Carlos Nino and I were both Argentine-born jurists and academics in the area of human rights, and we could have met in many ways, our paths crossed for the first time in Prague in 1991 at a conference where both of us had been invited to speak about the relevance of prior experiences in political transitions for the former communist bloc, and in particular regarding the question of how successor societies should respond to the crimes of the prior totalitarian regimes. To what extent were successor states obligated to punish the perpetrators of past abuses?

      For a decade now...

    • Chapter 18 Dictatorship and Punishment: A Reply to Scanlon and Teitel
      (pp. 291-300)
      Ernesto Garzón Valdés

      In what follows I offer a few comments on T. M. Scanlon’s and Ruti Teitel’s reflections on what Carlos Nino has called “radical evil” and its punishment. Specifically, I will consider the two aspects of the problem analyzed by Scanlon, that is, the problem of “building a legal order that preserves the rule of law and provides remedies for victims of past human rights abuses.” My comments on Teitel’s chapter will concentrate on the question of transition. A few references to the Argentine case will serve to clarify my own position on this problem. My remarks will be made from...

    • Chapter 19 Human Rights and Democracy in Practice: The Challenge of Accountability
      (pp. 301-306)
      John Shattuck

      This is a time of great global transitions, and those transitions affect the nature and thrust of human rights advocacy in U.S. foreign policy. During the Cold War, especially in its last decade, threats to human rights and democracy were seen as deriving from two primary sources: the threats posed by communist totalitarianism were clearly perceived both by the U.S. government and the human rights community; and the human rights community for its part did not limit its critique to totalitarian states, but also crusaded against human rights abuses by authoritarian regimes, even those considered friendly to the United States...

  8. List of Contributors
    (pp. 307-308)
  9. Index
    (pp. 309-317)