Any analysis of the role of human rights in domestic constitutional law must grapple with a central tension lying at the core of the relationship between the two. Whereas constitutional law is inevitably grounded in a particular place covering defined sets of people, human rights aspire, as the term makes clear, to transcend the political in the name of entitlements that inhere in people wherever they are from and regardless of the governmental arrangements under which they live. National constitutional law can almost always point to a specific moment when the foundational document from which all else follows is agreed and brought into effect, and even in those very few places where this is not the case (the United Kingdom, for example) the ‘constitution’ is made up of a bundle of documents (statutes; judicial decisions; shared practices) which are similarly rooted in time as well as in place and people. In this way too human rights appear different: the vast ambition of the phrase involves a claim to stand outside a history made up not only of people and places but of foundational turning points as well.
The bridge between these antithetical perspectives in the national constitutional environment is human rights law. Here the universalist instincts of human rights are given a voice but in a way that harnesses their impulsive ethical force. The term is tamed by being forced to take a legal shape recognizable to (local) constitutional law while the latter is compelled through its reception of human rights to make some concessions to the universal. As we shall see, the tension between the two is played out in different ways around the world but in our contemporary democratic polities there can be little doubting that the two need each other. Human rights without law are (merely) a bunch of activists’ claims or philosophers’ dreams. But constitutional law without human rights (or whatever the relevant document chooses to call them: more on this shortly) looks altogether too morally neutral to be entirely trustworthy. There was a time when in at least some places it was thought that democratic society could get along just fi ne with no moral basis to government other than agreement on how laws were made, enforced and interpreted (with even these structures themselves being up for grabs). That is rarely now believed to be the case even in those places where it had once held sway, and ‘human rights law’ is what has rushed to fi ll what has increasingly come to be believed was an ethical gap at the core of democratic government.
In this chapter our task is to unravel the practical implications of the tension just identified and assess how effective human rights law has proved to be at managing the constitutional conflicts that it produces, across various jurisdictions. There are three large- scale paradoxes generated by this sterling effort of human rights law at bridge- building, and before we turn to the substance we shall elaborate on these now: understanding them will help guide us through the constitutional thickets to follow. First – in a subset of the central tension with which we started – there is this dependence of human rights law for its very existence on the sort of grounded constitutional moments that human rights appear by their very nature to demand to transcend. How does human rights law escape the claim to ahistorical universalism that is so much the rationale of the field of which it is the legal offshoot? Does the bridge to the grounded from the ethereal not inevitably drag the latter down with it? Now it is true that there are rare moments when even in democratic societies adjudicators of disputes fi nd in ‘natural law’ a source of right and wrong that trumps not only ordinary law but (even) the constitution to which that ordinary law is itself uncontroversially subject. A famous dissenting judgment from Ireland in the 1930s did exactly this, with no less a figure than the Irish Free State’s inaugural chief justice Hugh Kennedy reaching into a quasi- religious space to find constraints on a government that were rooted not in the apparently authorizing words of the constitution he was interpreting but rather in a timeless sense of right and wrong. 1 Such attempts are rarely made and when they come along they invariably fail. For all his stature Kennedy’s reflections were unpersuasive; no democracy can allow judicial interventions like these to gain the upper hand if it wishes to avoid a drift to theocracy at worst, juristocracy 2 at best. But this being the case, how then does the universal stay afloat in the sea of localism in which it finds itself? As we shall see, the answer to this varies from place to place and across time. The extent to which human rights law is able to reach beyond its moment of national birth depends (ironically, it might be thought) on the sort of birth it has, how many rights it produces, how robust and ambitious it is.
Our second paradox leaps out at us the moment we acknowledge how indelibly our subject is rooted in democratic governance: human rights appear to thrive best of all in the political cultures whose commitment to the popular will appear to leave no room for them. This is another way of saying that the protection of human rights via an independent rule of law is now regarded as a key component in a properly functioning, modern democratic state. 3 We must distinguish here between such places and the sort of polities in which in this chapter we have no interest: states with declarations of commitments to human rights which are either creatures of the executive will 4 or those in which sentiments such as these are designed merely to function as camoufl age for the exercise of despotic power. 5 Totalitarian states can have ‘human rights’ – Stalin’s constitution of 1936 is full of them. 6 Fascist regimes likewise – Hitler deployed his human rights conscience in the pre- war 1930s when he expanded his territorial reach under cover of interventions to protect maligned German minorities in neighbouring states. 7 In this chapter we are not concerned with the ‘bad- faith’ use of human rights in this way. Our assumption is that the phrase is being deployed in tandem with those other benchmarks of civilized democratic living, popular elections and an uncompromised judiciary.
But if this is the case, then how can we be describing democratic government? The whole point of the democratic revolution was surely to sweep away constraints on the ‘people’s will’ whatever shape they happened to take in their subtle or not- so- subtle defence of vested interests? How can a ‘proper’ democratic regime submit to human rights law when this inevitably entails genuflection before the judicial branch, a cohort of personnel who may well (depending on where we are looking) have been in the van of anti- democratic reaction in the years of struggle? The only way out of this paradox – and the point is hinted at in our reference a moment ago to human rights backed by the rule of law as a ‘key component’ in any such system – is to dissolve it by redefining democracy, as Ronald Dworkin and other key rights- thinkers have done: the will of the people ruling as they will becomes just a type (and the wrong type) of democracy, ‘majoritarianism’, whereas true, authentic democracy involves expression of the will of the people of course, but now hemmed in by a set of moral boundaries that guard against populist transgression. 8 Representative democracy does not get to play free- style on the whole playing surface but only on a pitch with boundaries set by the referee to prevent any straying out- of- bounds. Constitutional human rights are the lines on the pitch that ensure the democratic game is played within those proper limits. And inevitably, given the way we construct representative government with its high emphasis on separation of powers, it is the judges who play the role of referees.
Our final paradox concerns claim and delivery. There is an immense mismatch between the loud ethical claims of human rights law on the one hand and their singular impotence when viewed in isolation from other branches of the state on the other. Here are claims that talk big but carry no stick at all. The bark is not only ‘worse’ than their bite; without the help of others there is no bite at all. The dependence of human rights on the various organs of the state to give them any kind of effect is total. Human rights are, after all, not an organ of the state, jostling to achieve a position where they can get things done, an executive branch at odds with the legislature or vice versa. At bottom they are merely claims on (constitutional) bits of paper whose potential wholly depends on a group of interpreters, the judges, who are themselves (as ‘the least dangerous branch’) 9 dependent on the goodwill of their colleagues across the polity if their constitutional commands are to have any effect. In this regard the probably apocryphal remark attributed to US President Andrew Jackson about a particularly controversial ruling by the then US chief justice and his colleagues on the Supreme Court, ‘John Marshall has made his decision; now let him enforce it!’, 10 stands as a warning against excess of which all judges tempted by the first phrase rather than the last word in the term ‘human rights law’ need to be mindful. (And the case about which the remarks were supposedly made , Worcester v. Georgia , 11 was what we would today regard as an important ruling on the rights of indigenous people.) Practice (in terms of what actually happens) does not necessarily follow from what the constitutional text declares to be the case by way of enforcement mechanisms and duties. How do constitutions avoid human rights merely adding to the beauty of the instrument, ethical adornments on the outside of the civic building but offering precious little shelter for anyone within? In this chapter the aim is to grow a deeper understanding of our subject by seeking to resolve as much as we can each of these paradoxes in turn, thereby doing the best we can to understand the central tension between the universal and the particular that lies at the heart of our subject (and with which we began). First, though, there are unavoidable issues of definition, not about what democracy means this time but rather concerning the sorts of rights with which we are about to concern ourselves.
1 The State (Ryan) v. Kennedy  1 IR 170, at 204: ‘every act, whether legislative,
executive or judicial, in order to be lawful under the Constitution, must be capable of
being justifi ed under the authority thereby declared to be derived from God’. (Note the
‘thereby’ – even here the invoker of natural law is hedging his bets about their source).
2 K.D. Ewing , ‘ The Bill of Rights Debate: Democracy or Juristocracy in Britain ’, in K.D.
Ewing , C.A. Gearty and B.A. Hepple (eds.), Human Rights and Labour Law. Essays for Paul
O’Higgins ( Mansell Publishing , 1994 ) , ch. 7.
3 H. Brunkhorst , ‘ Constitutionalism and Democracy in the World Society ’, in P. Dobner
and M. Loughlin (eds.), The Twilight of Constitutionalism? ( Oxford University Press ,
2010 ) , ch. 9.
4 P. Brooker , Non- Democratic Regimes, 3rd ed. ( Palgrave Macmillan , 2014 ) .
5 C. Gearty , Liberty and Security ( Polity Press , 2013 ) .
6 See in particular Chapter 10 of that constitution: www.departments.bucknell.edu/ russian/
const/ 36cons04.html#chap10 (accessed 26 September 2017).
7 As with Danzig and Poland: see Hitler’s speech to the Reichstag on 1 September 1939:
http:// avalon.law.yale.edu/ wwii/ gp2.asp (accessed 26 September 2017).
8 R. Dworkin , Taking Rights Seriously ( Gerald Duckworth and Co , 1977 ) ; R. Dworkin , Law’s
Empire ( Harvard University Press , 1986 ) .
9 A. Bickel , The Least Dangerous Branch. The Supreme Court at the Bar of American
Politics, 2nd edn ( Yale University Press , 1986 ) .
10 ‘The decision of the Supreme Court has fell still born, and they fi nd that it cannot coerce
Georgia to yield to its mandate’ is less glamorous but more accurate: New Georgia
Encyclopaedia www.georgiaencyclopedia.org/ articles/ government- politics/ worcester- vgeorgia-
1832 (accessed 26 September 2017).
11 31 US (6 Pet) 515 (1832).