Menschenrechte und Mehrheiten

Abstract

Human Rights and Majorities The paper is the written version of the 2nd Doehring Lecture given at the Max Planck Institute in October 2021. The author argues that claims of secular truth return to liberal democracy via a judicially supported expansion of human rights. Those truth claims had been effectively excluded or neutralised in the past. These days identity politics and transformative constitutionalism challenge the abstinence. The two challenges are being discussed in relation to the European Convention of Human Rights and its enforcement mechanism. They are confronted with the argument, that human rights and political majorities are not necessarily as a zero-sum game. They have a more complex interrelationship than the commonly assumed, classical containment of a majority by individual rights of minority representatives. Neither political communities nor the state nor a majority are per se abstract entities posing a threat to individual rights. The fact that there is historical and current empirical evidence not only of threats, but also of violations and even annihilation of rights, is no justification for a pessimistic model of liberal democracy. The author is concerned with the continued shift of parliamentary legislation towards a “culture of justification" thereby promoting the tendency to neutralise the majority principle in representative democracy. A further invigorated culture of justification indirectly puts the parliamentary majority decision under pressure to explain and cohere, which is not complementary to the motives and rationality of political majorities. Because members of democratic majority may pursue the same objective, but not always for the same reasons. Rational rights in court are then confronted with erratic politics in parliament. The paper is therefore a vigorous defence of representative democracy against its modern intellectual threats.