Rights, Rules, and Democracy [chapter]

RICHARD S. KAY
2003 Protecting Human Rights  
Democracy require protection of certain fundamental rights, but can we expect courts to follow rules? There seems little escape from the proposition that substantive constitutional review by an unelected judiciary is a presumptive abridgement of democratic decision-making. Once we have accepted the proposition that there exist human rights that ought to be protected, this should hardly surprise us. No one thinks courts are perfect translators of the rules invoked before them on every occasion.
more » ... on every occasion. But it is equally clear that rules sometimes do decide cases. In modern legal systems the relative roles of courts and legislators with respect to the rules of the system is a commonplace. Legislatures make rules. Courts apply them in particular disputes. When we are talking about human rights, however, that assumption must be clarified in at least one way. The defense of the practice of constitutional review in this article assumes courts can and do enforce
doi:10.1093/acprof:oso/9780199264063.003.0006 fatcat:d5zy3r2mlrcehb77c5a4te7f4i