Book Notes

Deliberative Democracy and Human Rights. Edited by Harold Hongju Koh and Ronald C. Slye. New Haven, Conn.: Yale University Press, 1999. $20.00, cloth.

Deliberative Democracy and Human Rights is an anthology of articles exploring the dynamics between human rights and government. This book is a product of a conference held at Yale Law School in September 1994 in memory of Carlos Santiago Nino, an Argentinian political theorist, policy maker, and human rights advocate. It presents a dialogue among thinkers with Nino’s ideas functioning as the stimulus for further thought and exploration. The contributors to the book interact with Nino’s ideas, supporting and contesting them, while developing their implications. Deliberative Democracy and Human Rights does not offer any definitive conclusions, but it engages fundamental human rights issues with which all scholars must grapple. Readers are left to continue the dialogue on their own.

The book is structured around four themes: the moral justification for universal human rights, the political implications of a universal conception of human rights and its connection to democracy and constitutionalism, the relationship between moral principles and political practice, and confronting “radical evil” by holding a prior regime accountable for gross human rights violations. The book is divided into five parts. Part One introduces Nino’s ideas and pays tribute to this human rights thinker and activist. Part Two of the book probes the substantive content of human rights norms and the basis for human rights’ fundamental and universal status. Contributors focus on the ideal of moral equality and propose viewing human rights as a normative status possessed by all persons in the moral community. Human rights are also perceived as an area of limited state sovereignty over the core of personal and expressive life.

Parts Three and Four of the book develop the notion of democracy not as an end in itself, but rather as a normative concept and vehicle for the creation of a more just society, defined by the promotion of human rights. Thus, democracy and human rights are inextricably linked. It is not just that a democratic government is necessary to protect human rights, but that human rights are the raison d’etre of democracy. These parts examine the form democracy should take. Does a commitment to human rights necessitate a particular type of democracy or constitution? Is the creation of a stable political and economic order a precondition for the preservation of individual rights? Is a liberal rights regime dependent on the adequacy of resources and

on conditions that it cannot create? How is it possible to form a government that is strong enough to prevent anarchy and constrained enough to prevent tyranny? It seems that the constitution, as both a power-creating and power-channeling mechanism, can provide the means of assuring this balance. A deliberative democracy is viewed as a transformative and moralizing force, converting people’s original self-interested preferences into more altruistic and impartial ones.

These parts also carefully scrutinize the majoritarian premise of democracy. There is an intrinsic tension with majority rule in the human rights movement. The protection of human rights appears intertwined with a democratic system of government, but there is also a strong counter-majoritarian strand inherent in the movement. The human rights struggle is a constitutional movement that removes certain rights and principles from political bargaining and the will of the majority. Human rights are fundamental and universal, inheritors of the natural law legacy. They exist outside the majority’s will and have almost the divine status of revelation. Various authors in the book thus work to resolve this tension by rejecting the majoritarian premise of democracy and embracing instead the alternate goal of equality. Democracy should be adopted out of concern for the equal status of citizens. It is the best way to assure the treatment of all individuals with equal respect. This section would be stronger if the authors were to question and “unpack” their concept of “the majority.” In certain cases, perhaps the majority is not the simple majority of one particular instant, but is rather a majority across time and geographic boundaries. The will of the majority varies depending on how broadly it is defined. The human rights movement has relied on this notion, looking to the “supra-majority” of the international community to promote its agenda.

Finally, Part Five of the book confronts the need for accountability for the human rights abuses of a past regime. This section is especially relevant and timely in the wake of truth commissions and the Pinochet affair. The authors of the articles in this section reject retribution as an infeasible basis for punishment and prosecution. A purely retributionist view would require the punishment of all involved. With the diffusion of responsibility in a corrupt regime, this would implicate large segments of the society. This is politically and economically impossible and counter-productive in terms of healing social wounds.

Prosecution and punishment fulfill multiple purposes, however: retribution, rehabilitation, deterrence, reconciliation, and compensation. As Irwin Stotzky writes, administering punishment is necessary to preserve the rule of law and “inculcate in the collective conscience of the polity that no sector of society stands above the law and under no circumstances may a human being be treated as a mere object, a means to a goal” (p. 180). Yet, this must be done without destroying the stability of a tenuous democracy, alienating entire segments of the population, or violating the ethical tenets of the new democracy itself through a retroactive application of justice. Granting am-

nesty is a political necessity. Fortunately, the most important functions fulfilled by prosecutions can be satisfied by truth and reconciliation commissions. It is important to repair the historical narrative and give voice to the silenced victims. Thus, human dignity can be reaffirmed, and it is possible to break the cycle of retribution and violence, thus strengthening the rule of law. The burden of collective guilt can also be lifted with the assurance of historical accountability.

Deliberative Democracy and Human Rights engages important human rights questions, and a fascinating dialogue unfolds before the readers’ eyes. The focus of this book, however, remains traditional. It would be good to have another section on how the human rights model can reach private, non-governmental actors. Social and economic rights appear as mere afterthoughts or preconditions for the achievement of political and civil rights, rather than as fundamental rights in themselves. Furthermore, how do group rights and notions of self-determination fit into the picture? These ideas should be further explored.

—Tamar Ezer

Copyright © 2000 by the President and Fellows of Harvard College
Harvard Human Rights Journal / Vol. 13, Spring 2000