Human Rights: A Culture of Controversy

Many arguments in favour of constitutionally entrenched Bills of Rights are undermined by the inherently controversial nature of human rights with respect to their content, their form, and their valence. Even in the case of civil and political rights, the concretization of rights at the level of specificity required to decide particular cases must always be politically and morally controversial. There is no accepted moral or legal method that can be utilized to give the requisite objectivity to the value choices inherent in human rights jurisprudence. Positivization of human rights increases their utility but compromises their moral status. It follows that legitimate articulation of human rights requires ongoing democratic dialogue and decision-making. Although perceived as a stop-gap measure, the Human Rights Act 1998 could facilitate an enduring partnership between courts and parliaments, placing human rights more firmly on the political agenda and establishing a proper balance between the inputs of courts and parliaments which recognizes that the development of positivized human rights must be primarily located in electorally-based politics.