Discussion: Deciding Human Rights

[asterroc]

This came up on someone else's blog, and now I want to know what people think.

Viewpoint A: "Human rights should never be subject to a general vote. We should never allow the majority to oppress the minority."
Viewpoint B: "But how do we know what basic human rights *are*? Who defines them except the people, and therefore a popular vote?"

Discuss!

FWIW I ask these discussion questions when I'm uncertain of what I think on the topic and I want input to help me understand the nuances of it. As usual, I would appreciate it if vituperation was kept to a minimum, yadda yadda.

Comments

[q10.livejournal.com]

this is something of a false dichotomy - we can believe that human rights have some reality independent of the political process if we like, but at the end of the day, some person or group of people, by some process, has to be in charge of identifying what the rights at hand are. in cases where we talk about human rights being put up for popular vote, what we usually really mean is that there's general disagreement in the society about whether the thing in question is really a human right. if there's such a dispute, then sooner or later it's going to have to come before some arbiter. a simple democratic process is not obviously the best arbiter, and it will eb wrong a lot of the time, but there's no arbiter that's obviously reliably better. even if we do conclude that some other institution should be the arbiter in general (which sounds good to me), that arbiter ought to have some eventual democratic accountability (perhaps quite remote, as is the case for, say, federal judges), because otherwise it'd be pretty foolish to trust the institution in question to remain even minimally well-intentioned.

if we had an oracle who was known to be always right about these things, life would be simpler, but, alas, we don't so we have to do our best with some process that we hope will let the side of truth and justice make it's case, and accept that, no matter what process we pick, sometimes things will come out the wrong way.

in the case at hand, it should be noted that the constitution of the state of California is way, way too easy to amend, and that a slightly different process would probably, on average, produce better results, but this means that the particular democratic process being used is suboptimal, not that some process systematically removed from democracy is a viable alternative. to be honest, though, i'm really disturbed by the ‘we should get them to find this constitutional amendment unconstitutional’ people - any constitution, most emphatically including that of the state of California, is going to be a rather flawed and limited document, and any court is vulnerable to the same kinds of biases, conflicts of interest, blind spots, temptations, and ulterior motives that all humans are vulnerable to. if a flaw in the constitution becomes unacceptable, but it's a flaw the courts are rather fond of, there needs to be some reliable procedure to override them, and the idea that we should trust the courts with the power to say ‘nope. sorry. that constitutional amendment doesn't count. end of story.’ shows a disturbing lack of foresight about the long-term implications of this kind of plan for institutional balances of power.

[q10.livejournal.com]

i should mention that the above is ignoring for the sake of simplicity the revision vs amendment business in CA, which might in this particular case make a state court action against prop 8 make sense, but which is largely independent of the broader conceptual issue you seem to be raising.