A commonly stated objection to the national and supranational judicial review of human rights is that it trespasses on democratic decision-making. The striking down of domestic legislation or the making of orders for positive action that carry budgetary consequences are among the most controversially cited forms. This debate is inter-disciplinary and engages political philosophers, judges and legal scholars and political and other social scientists. At the same time, the definition of democracy in political theory is spectacularly unsettled, ranging from thin notions of representative democracy to thicker claims for quality in its’ representativeness, deliberativeness, distribution and/or outcomes etc.
This exploratory paper asks how actors in different disciplines understand democracy in hard cases of human rights which may engage with the legislative function of government. The paper will look at a selection of texts in political philosophy where there is disagreement between authors, six legal judgments (from South Africa, Ireland and the European Court of Human Rights) and, if time permits, some political science and economic texts which analyse the ‘democratic effects’ of particular judgments. The aim is primarily to understand and reveal how democracy is framed in the different discourses. The paper also asks in a more explanatory fashion whether different notions of democracy could explain the final views or judgments on the role of the judiciary in particular cases or whether other factors at play are more important, such as the facts of a particular or imagined case, the importance ascribed to a particular human right or the cultural embeddedness of the author or judge.