So, whadda ya want? Democracy or Rights?

You do rather have to decide you know:

The European court of human rights last week settled the case of three Irish residents who argued that their wellbeing had been jeopardised by their need to travel abroad in order to secure an abortion. Ireland\’s theocratic strictures on terminations are nothing new. The abortionist Mamie Cadden was sentenced to hang in 1957, and during the half-century since there have been repeat referendums, a constitutional amendment and a run of test cases, but the basic bar remains in full force except in tightly prescribed circumstances, most notably where the woman\’s life is in danger.

No, really, you do have to decide. Does democracy trump rights? Or do rights trump democracy?

Here the argument that a woman\’s right to an abortion trumps the democratically expressed will of the Irish electorate. Well, in The Guardian\’s version of it.

OK, great, so we\’ve now got a set of rights (and they mention the abolition of the death penalty as well) which trump the democratic will of the people.

Good, fine: so which rights do so? For example, does obeying the law of the land on taxation trump the desire of the mob (the \”demos\”) that fat cat rich bastard foreigners pay more tax in Britain? The argument over Lady Green certainly seems to think not.

It\’s a tricky one isn\’t it?

What rights are above the peoples\’ will? And yes, there will be a test on this: there is every single damn day the legislature is in session.

24 thoughts on “So, whadda ya want? Democracy or Rights?”

  1. ECHR works well for me.

    But then, I’ve never seen any instrumental moral value in democracy – it’s just slightly less awful empirically than the real-world alternatives.

  2. “ECHR works well for me.”

    Well sort of. Quite a few weasel clauses then there. For example, the “public morals” that they used with Operation Spanner.

  3. This Irish citizen wants us to to ignore this ruling. To me the subject is ultra vires for this particular court and none of its business.

  4. No no no Timmy, you don’t understand. The will of the informed electorate must always triumph and it is the sacred public duty of publications like the Guardian to inform the electorate what their will should be.

  5. It’s called a constitution, Tim. Everyone has one, even pre-EU UK. It stops democracy turning into hang-em-all mob rule. Maybe you don’t like the one everyone including the Irish signed up for, but there it is. (The occasionally idiotic judges who interpret jurisidictions, in all countries, in all courts, now that’s another kettle of fish).

    Come to think of it, it’s still democratic at root: you have a process for changing your consititution by an extra-complicated vote (an amendment, in the US), or even, if enough or all the democratically-elected governments agree, to change a Human Rights Convention.

  6. Wot 1 and 2 said – too many caveats in the Convention, but I think we’re better off with than without.

    (someone will no doubt bring up deportations…)

    There was some discussion on LibCon about drugs. Some people still appear to believe their disapproval trumps my freedom to ingest what I please even if I harm no others by doing so.

    In relation to Operation Spanner, quite why “[inflicting pain] subject to certain rules including the provision of a code word to be used by any “victim” to stop an “assault”, and did not lead to any instances of infection, permanent injury or the need for medical attention” (see Laskey, Jaggard and Brown v UK) is unacceptable but boxing or other martial arts is fine, I don’t know – unless again it is disapproval of activities trumping the freedom to engage in those activities, because certain activities (e.g. boxing or boozing) are ‘normal’ and others in our country are not (e.g. S&M or snorting a line of coke).

  7. “It is in my judgment best to regard [boxing] as another special situation which for the time being stands outside the ordinary law of violence because society chooses to tolerate it.” (R v Brown)

  8. “even if I harm no others by doing so”

    They then claim that you do harm others: your friends and relatives who are distressed to see your health decline (the decline being caused by the contaminants in the drugs due to them being prohibited..)

    It’s pathetic, isn’t it?

    “because society chooses to tolerate it.”

    Society chooses to tolerate S&M too. It’s the police, undertaking Operation Spanner on their own initiative, who don’t.

    The oddest aspect of all was that the ‘victims’ of ‘assault’ by consenting to it became accessories to the crime.

  9. Ambrose Murphy: FYI: this court is not part of the EU, so we haven’t “signedc up” for it in your sense.
    This court is making it up as it goes along, as the cliche has it. Abortion was not never part of its remit and for me it has no authority in this area.

  10. “The abortionist Mamie Cadden was sentenced to hang in 1957”: was she now? But they either strung ‘er up or they didn’t, so why the weaseling? Because it’s the Nurdgaia, I suppose.

  11. “Abortion was not never part of its remit”

    Yes it was. The remit was fundamental human rights, and the argument is well within that remit.

    But you do underline the point: your views on what other people should do are not valid because human rights should not be subject to the whims of a simple majority of people.

  12. “The abortionist Mamie Cadden was sentenced to hang in 1957”

    If she’s anything like Vera Drake, I’m not surprised. I had some sympathy for her when she lived in London, but when she later took over as headmistress of that wizarding school she was a right evil cow.

  13. Kay Tie: Not at all.
    The ECHR is an international court set up in 1949 when ideas on abortion were very different to what they are now. It was not thought by anyone that the ECHR would ever have jurisdiction on this subject. There is a difference between listing the areas such an international court may consider within its remit and giving it vague limits that it can then bend to suit a judicial philosophy that it espouse but which other courts and jurisdictions reject .

    It’s one thing for national courts to make these sorts of decisions as the political process can be used to overturn them, by laws and referendums. But how could this ECHR decision be overturned?

  14. Liberal first, democrat second (socialist third). Just like JS Mill.

    Rights of minorities trump will of the mob. Always. Rule of law has to win, always.

    Lobby to change law to make living in Monaco while owning a UK company if you will, have that debate, but while it’s legal, it’s legal.

    Ireland signed up to ECHR and has repeatedly affirmed desire to stay in EU. If ECHR says right to private life includes abortion, then that’s what it is.

  15. “The ECHR is an international court set up in 1949 when ideas on abortion were very different to what they are now.”

    It doesn’t mention abortion at all. It talks about human rights, and those ideas don’t change: they are supposed to be universal.

    It may be that society changes its views on what is acceptable (such as male homosexuality) and stops violating the rights of individuals. It’s true the ECHR didn’t do much to restrain the persecution of homosexuals just as it didn’t stop the police and Operation Spanner. But that’s because the justice system didn’t have enough guts to go against the will of the mob.

    “But how could this ECHR decision be overturned?”

    It can’t without changing the ECHR. That’s the beauty of the system: by the time it could be changed, the moral panic that lead to the change has moved on (although the Prohibition movement in the US disproved that).

  16. True Tim when dealing with the strictures of democratically elected autocracies, but ultimately a more important longer term question(s) is thusly put: what(/whose) rights trump what(/whose) rights?

    It is a wholesale abandonment of this principle illustrated by state-advocated murder and the rule of demos to enforce it that allows a whole bunch of necessary evils we see now.

  17. ‘Human rights’ are a fiction. The only rights that exist are those embodied in a legal system. And in a democracy the legal system is constructed and amended by democratic procedures. So there is no conflict between rights and democracy.

  18. “The only rights that exist are those embodied in a legal system. And in a democracy the legal system is constructed and amended by democratic procedures. So there is no conflict between rights and democracy.”

    Legal rights are trampled on, e.g. kidnapping people from Macedonia and detaining them in Afghanistan. No democratic procedures amended any legal constructions there.

    But Tim is of course referring to the self-evident truths, which are a fiction, but a fiction I’m happy to subscribe to, “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness” – freedoms and rights we ought to have simply because we are people, not because politicians have granted them to us.

  19. Paul Power: “this court is not part of the EU, so we haven’t “signedc up” for it in your sense.”

    It didn’t fall out of the sky with authority over Ireland: Ireland signed up – not sure what other “sense’ there might be.

    “But how could this ECHR decision be overturned?”

    The court can change its mind, but should rightly be very reluctant to do so. Otherwise you can change the convention, but that would be practically almost impossible. Facts of life.

    “The ECHR is an international court set up in 1949 when ideas on abortion were very different to what they are now. ”

    That’s an oringinal intent of the founders or strict construction argument that would say they can’t talk about satellites or the internet or cell-phones, because they didn’t exist at the time, or give rights to homosexuals or choice about abortion because that’s not what the signers intended in 1949. That kind of court would have stopped being useful in about 1955.

    Constitutions breathe and change as society changes, no-one ever agrees with everything they do (too slow, too fast, too far, too timid), but it beats mob rule, and it beats rule by demagogues.

  20. Ambrose Murphy:
    There is no constitution or society, as I pointed out implicitly when I noted that your approach would work in one country. Your entire argument fails right there. If countries diverge as they develop, who is to say which divergent path is correct? Having a majority of outsiders enforce its changed view on a subject on a country is not acceptable to me, on a subject no one thought would come under the remit of the court in question.

    We have never given any outside body powers on abortion in Ireland. Indeed during the various campaigns on the last few EU treaties our government has obtained formal explicit declarations from the EU stating that the treaties will no effect on Irish abortion law.

    Kay Tie’s point abut having to “change the ECHR” refutes itself. The court, by her own argument, does this all the time so why can’t a contracting country ignore such a decision? And I just love the equation of democracy with rule by the “mob”.

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