Allan's 'Human Rights - Can we afford to leave them to Judges?'

A Summary.

Article can be found on pp. 59-69 of the Learning Guide.

The power of the judiciary has increased markedly across the common law world. And much, thought not all, of that increase is directly related to the effects of bills of rights. By articulating rights in amorphous, indeterminate but also emotively attractive terms, these instruments finesse disagreement by abdicating it to an unelected judiciary. This though is not the only way, or indeed the best way, of dealing with rights. One can prefer to leave the articulation of rights to the elected legislature via more detailed and specific statutes. This preference in no way amounts to a view that rights cannot be afforded, rather it amounts to thinking that what we cannot afford is leaving rights to unelected judges.

The attraction that a bill of rights may be some ultimate saviour in providing a remedy to breaches of rights can be strong enough to push from view the fact these instruments elevate the importance of judges and lawyer by letting them decide, argue about and critique where to draw fundamental social policy lines over tough moral choices. It drives resolution of important social issues from the political arena into the courts and gives these judges and lawyers a say that non-lawyers are denied.