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Sceptical Essays on Human Rights$
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Tom Campbell, Keith Ewing, and Adam Tomkins

Print publication date: 2001

Print ISBN-13: 9780199246687

Published to Oxford Scholarship Online: January 2010

DOI: 10.1093/acprof:oso/9780199246687.001.0001

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Rights, Democracy, and Law

Rights, Democracy, and Law

(p.41) 3 Rights, Democracy, and Law
Sceptical Essays on Human Rights

Martin Loughlin

Oxford University Press

This chapter discusses the main issues of debate which surround the question of whether or not it is desirable to seek to protect fundamental rights in constitutional documents. The potential juristic significance of this exercise, an exercise in what might be called the positivisation of natural rights, is examined. The chapter also assesses whether the institutional protection of designated rights can lead to more effective, enlightened, and responsive modes of governing. The democratic justification for the legal order is underpinned by the principle of popular sovereignty whereby a body of free and equal citizens comes together, generally through a representative assembly, to enact rules to promote the general welfare. This democratic form of accountability of governors to citizens ensures that the laws reflect the will of the people. This chapter also considers the reconciliation of rights and democracy, the foundations of rights claims and democracy claims, liberalism and republicanism, nature of the legal order, and architectonic principles and local politics.

Keywords:   rights, democracy, laws, rights claims, legal order, liberalism, republicanism, local politics, positivisation

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