The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

The Promise of Human Rights: Constitutional Government, Democratic Legitimacy, and International Law

Synopsis

International human rights law is often criticized as an infringement of constitutional democracy. In The Promise of Human Rights, Jamie Mayerfeld argues to the contrary that international human rights law provides a necessary extension of checks and balances and therefore completes the domestic constitutional order. In today's world, constitutional democracy is best understood as a cooperative project enlisting both domestic and international guardians to strengthen the protection of human rights. Reasons to support this view may be found in the political philosophy of James Madison, the principal architect of the U.S. Constitution.

The Promise of Human Rights presents sustained theoretical discussions of human rights, constitutionalism, democracy, and sovereignty, along with an extended case study of divergent transatlantic approaches to human rights. Mayerfeld shows that the embrace of international human rights law has inhibited human rights violations in Europe whereas its marginalization has facilitated human rights violations in the United States. A longstanding policy of "American exceptionalism" was a major contributing factor to the Bush administration's use of torture after 9/11.

Mounting a combination of theoretical and empirical arguments, Mayerfeld concludes that countries genuinely committed to constitutional democracy should incorporate international human rights law into their domestic legal system and accept international oversight of their human rights practices.

Excerpt

I argue in this book that human rights require not only domestic but also international protections. The reasons why a country should adopt constitutional democracy as a form of government are also reasons why it should become integrated into an international human rights regime. It should incorporate international human rights law into its domestic legal system and accept international oversight of its human rights commitments. Contrary to the view that international human rights law undermines constitutional government by undermining state sovereignty, I argue that international human rights law is a necessary extension of domestic checks and balances, and therefore necessary for constitutional government itself. To put it another way, constitutional democracy is incomplete unless domestic human rights institutions are bolted into a system of international guarantees.

The justification for international human rights institutions typically offered to Western audiences is “outward looking”—that such institutions can improve the human rights practices of other countries. I instead present the “inward looking” argument that international human rights institutions can improve the human rights practices of one’s own country. International human rights institutions are an element of domestic governance: they allow democratic and democratizing states, through mutual criticism and oversight, to strengthen the domestic constitutional order. I do not minimize the importance of outward-looking motives. Indeed, the inward-looking rationale presupposes their existence: countries must take an interest in improving one another’s human rights practices in order for participating countries to reap the benefits of the system. But the inward-looking justification merits more attention than it has received.

Faith in the sufficiency of domestic human rights institutions is one mistake; belief that international human rights institutions can function unaided is another. The role of international human rights institutions is not to replace . . .

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