Public Trust, Judicial Independence and the Choice between Rules and Standards in Human Rights Adjudication

Abstract

Human rights laws substantially differ across legal systems, despite the fact that liberal democracies share the underlying moral principles of human rights. The differences result from “second order” considerations, ones that determine to what extent human rights law is composed of rules-based norms or is mostly a case-by-case, standard-like analysis. Accordingly, a central element that characterizes a legal system’s human rights law is its “locus” along the rules-standards spectrum. The choice along this spectrum should be shaped by moral considerations about the nature of rights, and by sociological ones, evaluating the expected effect of the form of human rights law on developing a common culture of respect of human rights. The relevant considerations do not induce a decisive judgment, but they present the costs of implementing an open-ended “balancing” approach. Specifically, it is improbable that the optimal form of human rights law is a corner solution of the type of an open standard. And yet, this particular form of human rights law is very popular, a fact that calls for an explanation. This Article suggests that the tendency toward standards is not the result of a principled reasoning but mostly a response to the decline in the public trust in the courts. Employing rules is a rational strategy for a court to shield itself from political actors’ pressure. However, standards enable courts to adjust the scope of judicial review in anticipation of the popular and political reaction to certain rulings. Accordingly, the greater the threats to independence of the judiciary, the closer to the standards-end of the spectrum human right law is expected to be. The choice may thus serve as an indicator of the diffuse popular support for the court, across different legal systems or over time in a given legal system.