Richard Bellamy (University College London – Department of Political Science) has posted Rights as Democracy (Critical Review of Social and Political Philosophy (CRISPP), Vol. 15, No. 4, September 2012) on SSRN. Here is the abstract:
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Like many rights theorists, Peter Jones regards rights as lying outside politics and providing constraints upon it. However, he also concedes that rights are matters of reasonable disagreement and that, as a matter of fairness, disputes about them ought to be resolved democratically. In this paper I develop these concessions to argue that rights require democratic justification and that this can only be provided via a real democratic process that involves those involved 'hearing the other side.' I relate this argument to the republican theory of non-domination, contending that it fits the Lockean project of regarding rights as constraints on arbitrary power better than liberal views that place rights outside the democratic process. I conclude by noting the implications of this argument for rights-based judicial review of legislation.