The Hardcore for Nerds blog has a response to my post from yesterday about Ireland’s abortion laws and the claim the State lays to democratic legitimacy. This is in light of the State’s failure to respond adequately to concerns raised by the UN Human Rights Committee, and, in particular, the claim by Department of Health Principal Mary Jackson that Irish abortion law was compatible with the International Convention on Civil and Political Rights.
HC4N suggests that the position Ireland initially articulated –and subsequently withdrew- wasn’t so much an effort to justify Ireland’s abortion legislation –and any violations of Article 7 that might stem from it- as an attempt at explaining the difficulty of introducing legislation that might adequately address the concerns expressed by the Committee, given the commitment to Article 25 and the political constraints such a commitment imposes.
I think this is a fair enough assessment. At the same time I don’t think it alters the course of my argument much. Assuming HC4N is right, Ireland’s position is still that there are particular democratic processes that have to be respected and contended with before the concerns about violating Articles 6 and 7 can be addressed, and that position still rests on the common sense assumptions I mentioned in the previous post.
At this point, HC4N refers to the ‘counter-majoritarian’ quality of human rights law, the way in which ‘formally defined ‘rights’ trump any attempt to counter them by passing legislation’, and notes how human rights law expresses a contradiction of liberalism: that one must be ‘forced to be free’.
Perhaps I’m being a bit sensitive here, but I think HC4N detects a naïve faith in human rights law on my part, and, in particular, faith in the idea that legal documents take on solid form when they express principles that I (or whoever) find congenial. That isn’t really what I was getting at.
HC4N discerns two ‘counter-majoritarian movements’ – human rights and Catholic doctrine, and proposes that for an Irish government to legislate for abortion in keeping with other inalienable rights of the person enumerated by international law, the government would ‘need to face down a very vocal minority, both within parliament (and its own parties) and outside, as well as a broad reluctance to pursue ‘liberal’ goals’.
Moreover, ‘to do so.. even with the supposed authoritative force of international law, over another, deeply culturally embedded, is to pursue a stalemate of ‘rights’ that only highlights their limitations in the face of politics.’
But for my part, I didn’t mean to suggest that the present Irish government ought to take the initiative to do anything with the backing of international law. I do not see it inclined to do so, to say the least. Nor did I mean to suggest that political action on the matter of abortion and other forms of social oppression ought to mean appealing to one moral superego –a sternly disappointed human rights lawyer, say- over another –a sternly forbidding bishop, for instance. My concern is rather: what political and legal instruments can people use to undo social and political oppression? (Here I think it is worth noting that the two ‘counter-majoritarian’ movements HC4N mentions have quite a lot in common. For one, they articulate certain values that have widespread -when not universal- democratic appeal, only for these values to be placed in the service of particular projects – usually some modern liberal capitalist regime, or modern ‘illiberal-liberal’ capitalism, in the case of the Catholic Church.)
In the particular case of human rights, the Universal Declaration of Human Rights wasn’t the product of a narrow counter-majoritarian movement; congealed in it are values emerging from long rebellions and struggles against capitalism. Demanding that these rights be vindicated by one’s government; highlighting the failure of the political regime under which you live to adhere to them; exposing the rift between formal democratic appearances and tyrannical realities: these are not at all things to be left to human rights authorities, but rather, things can serve as the grounds for popular democratic political struggle. Seen in these terms, it isn’t a matter of calling upon some exterior body to force one’s freedom, but of breaking with the resigned expectation that one’s government, in spite of all the evidence of its anti-democratic inclinations, should provide political leadership simply because it is the government.