Human Rights and the Separation of Powers

Abstract

Human rights are distinct from human rights law. Quite apart from the positive law of any community, each human person is entitled in justice to certain absolute rights that should never be violated. Every decent legal system recognises and secures absolute rights in some way, and also makes provision for the creation and enforcement of other particular legal rights which help members of the political community live well together. This recognition of the inviolability of absolute rights, and the importance of legal rights, is fully consistent with the traditional separation of powers in which judicial power is limited and in which political authorities are responsible for making the open-ended choices of lawmaking and policy that shape the community's future. This separation helps realise the rule of law and self-government, the denial or compromise of which, ordinarily at least, is itself an injustice. This article considers some aspects of the relationship between human rights and the separation of powers, questioning the aptness of human rights law to secure rights, including the right to be governed by way of the rule of law and to have a share in self-government.

Keywords: Human rights, Separation of powers

JEL Classification: K00