“Human Rights, Responsibilities, and Democracy,” Sikkink Comments on Tasioulas and Moyn Papers: “Symposium on the Future of International Human Rights Law”
By: Kathryn Sikkink
It is a pleasure and a challenge to comment on these two very different Articles, “Saving Human Rights from Human Rights Law,” by John Tasioulas, and “On Human Rights and Majority Politics: Felix Frankfurter’s Democratic Theory,” by Samuel Moyn. Both are rich, complex, and thought-provoking. To the degree they share any common dimension, it would be their skepticism toward human rights law, and in particular toward the judicialization of human rights law. But the skepticism comes from quite different directions and from their different disciplines. In the case of Tasioulas’s paper, the skepticism derives from his belief that legal human rights have gone beyond the realm of moral human rights, and thus he critiques unjustified legalization and judicialization of human rights. Moyn focuses on US constitutional law to argue that courts should exercise more deference with regard to the laws and policies decided upon by democratic majorities. In Tasioulas’s case, human rights law is contrasted with morality and found wanting, and in Moyn’s case, human rights law is contrasted with democracy and found wanting.