Deliberative Democracy and Human Rights

Deliberative Democracy and Human Rights

by Harold Koh, Ronald C. Slye

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In this important collection of writings, leading legal and political thinkers address a wide array of issues that confront societies undergoing a transition to democratic rule. Bridging the gap between theory and practice in international human rights law and policy, the contributors continue discussions that were begun with the late Argentine philosopher-lawyer


In this important collection of writings, leading legal and political thinkers address a wide array of issues that confront societies undergoing a transition to democratic rule. Bridging the gap between theory and practice in international human rights law and policy, the contributors continue discussions that were begun with the late Argentine philosopher-lawyer Carlos Santiago Nino, then extend those conversations in new directions inspired by their own and Nino's work.

The book focuses on some of the key questions that confront the international human rights movement today. What is the moral justification for the concept and content of universal human rights? What is the relationship among nation-building, constitutionalism, and democracy? What are the political implications for a conception of universal human rights? What is the relationship between moral principles and political practice? How should a society confront what Kant called radical evil? And how does a successor regime justly and practically hold a prior regime accountable for gross violations of human rights?

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Yale University Press
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Deliberative Democracy and Human Rights

Yale University Press

Copyright © 1999 Yale University
All right reserved.

ISBN: 0-300-08167-7

Chapter One

The Death of a Public Intellectual

Owen Fiss

In 1976 the military seized power in Argentina and, in the name of maintaining order and combating left-wing terrorism, established a heartless and brutal dictatorship that was without parallel in Argentine history. The reign of terror included kidnapping, torture, rape, and murder, and led to the death or disappearance of some nine thousand persons suspected or accused of being subversive. In the early 1980s, the generals sought to counter a decline in their support by trying to retake the Malvinas Islands from the British by force, but they failed in that endeavor and were soon defeated at the hands of Margaret Thatcher. Embarrassed by this turn of events and burdened by a deteriorating economy, the generals then decided to relinquish power and call for national elections, always assuming that the presidency would be won by the candidate-a Peronist-who promised to leave them alone.

The election was held in October 1983, and to the surprise of many, certainly the generals, the Radical Party candidate, Raul Alfonsin, won. He had campaigned on a platform that promised to bring to justice those responsible for the human rights abuses of the previous seven years, and he was true to his word. In the spring of 1985, the leaders of the junta were put on trial before a civilian tribunal in downtown Buenos Aires. The spectacle that then ensued absorbed all the energy of the nation; it was an extraordinary event in the history of Argentina and, for that matter, the world. It was not the first time that a successor government put the leaders of a previous regime on trial for human rights abuses, but it was one of the very few times that such a feat was attempted without the assistance of a conquering army.

In the midst of that trial, I, along with a small group of lawyers and philosophers from the United States and England (Ronald Dworkin, Thomas Nagel, Thomas Scanlon, and Bernard Williams), was invited by the government to come to Argentina. I immediately accepted and began to prepare for the trip with a certain measure of eagerness, although, to be perfectly frank, I did not have the least idea what lay in store for me. I did not know the language, I hadn't a clue about the legal system, and my impressions of Argentine history were based entirely on a quick read of Joseph Page's then recent book on Peron. Among close friends, I was at a loss to explain the purpose of the trip. I also found it difficult to form a concrete picture of our host and the person who had conceived of this odd academic junket-Carlos Nino. When I innocently inquired of Thomas Nagel and Samuel Isaacharoff-the two I always assumed were most responsible for this extraordinary turn in my life-they simply described Carlos as an adviser to the president.

My own image of a presidential adviser was shaped during the Watergate era. At that time I was working for the Committee on the Judiciary for the House of Representatives, which was trying to determine whether there were grounds to impeach President Nixon. I spent a great deal of my time during the summer of 1974 inquiring into the activities of two of the most notorious presidential advisers in American history, John Ehrlichman and H. R. Haldeman-dour, cynical political opportunists who were intensely faithful to Richard Nixon the man, but not to the nation nor even to the office they served. Some ten years later, on that first plane ride to Buenos Aires, interrupted by a short stop on the beach in Rio, I kept wondering who this adviser to President Alfonsin might be. How far would he fall from the American standard? Little, little did I know.

At our first meeting, Carlos Nino bubbled with conversation. There was a warmth and openness that immediately drew me to him. He was curious about his visitors, attentive to their every need, and always in the best of humor. He loved to tease and joke. He seemed to be the embodiment of life itself. These personal qualities immediately distinguished Carlos from his American counterparts (I'll put to one side the chaos and confusion that seemed to emerge spontaneously from his desk). Even more significant was Carlos's love of philosophy. I found in Carlos Nino a presidential adviser who loved ideas-big ideas, abstract ideas, deep ideas, sometimes even strange ideas, but always ideas-and who, by his devotion to speculative thought, distanced himself from everything American, not just the Ehrlichmans and Haldemans of the world, but even our most honorable officials.

Carlos believed in moral truth. He believed that there were certain principles that were right, and others wrong, and that these principles could be used by an individual or a nation for choosing the proper course of conduct. These principles were set forth in The Ethics of Human Rights, first published in Spanish in 1984, revised and published in English in 1991. This belief of Carlos's in the objectivity of ethical judgments was entirely admirable, and also much to my liking, but at times difficult to reconcile with the two other ideas that were foundational for him-a belief in deliberative democracy and the rule of law. What value can democratic politics have if there is an objective moral truth? A similar doubt might be raised about law.

Carlos was not the first philosopher who made his career by embracing a number of contradictory propositions, but like the very best, he openly confronted the contradictions and tried to reconcile them. He was always so honest. The result was his epistemic theory of democracy, which assigned a value to democratic politics because it enlarged the range of interests that would be taken into account in the formulation of public policy. He spoke movingly of "the difficulty each of us has in representing vividly the situations and interests of people very different from ourselves" and saw the democratic process as a means of transcending those limits and achieving a measure of impartiality. For Carlos, democracy was a surrogate of the informal practice of moral discussion, and in a fallible world, democracy was the best means available for discovering moral truth. Similarly, he embraced law as an indication of moral truth and gave it a value only insofar as it was the product of democratic deliberation.

Theories like this are grist for classroom discussion and academic journals. Indeed, Carlos explored these ideas for over a decade in countless articles in academic journals and in one of his final books, The Constitution of Deliberative Democracy. Remarkably, Carlos did not confine these inquiries to the academy. He also pursued them when he served the president. Carlos conducted his meetings within government as though they were graduate school seminars, analytically tough, but also speculative and broadly inquisitive. He assumed that every participant-even the president-had just put down Kant or Kelsen.

During that initial visit to Argentina, Carlos made certain that the visitors from abroad met the president, and I was struck by the affection and mutual respect that held them together; the president treated Carlos as a beloved son. But even more striking was the scope of discussion between the two, which ranged broad and far, and eventually settled on the work of Joseph Schumpeter, the great political economist who made his career during the first half of this century. In the presence of a few interlopers, Nino and Alfonsin sat around a conference table at the Casa Rosada at this dramatic moment in Argentine history, speculating about the inadequacies of Schumpeter's theory of democracy. Perhaps such discussions occurred in the councils of power during the days of Madison and Jefferson. I tried to imagine that kind of conversation occurring within the Oval Office in the early 1970s, in the 1960s, or even today, but found myself simply unable to do so.

In this devotion to philosophy, Carlos distinguished himself from the typical American public servant, but his engagement with practical politics distinguished him from most philosophers of his stature in the academic world. It was not just that he was prepared to address public affairs, which might now be commonplace in the American academy, but he was also prepared to act on his theories. Philosophy was an integral part of his effort to make the world just.

When the military seized power in 1976, Carlos was not politically active. He lived wholly in the kingdom of ideas. This did not insulate him from the reach of the dictators, who were prepared to kill those who did no more than espouse unorthodox ideas. As a result, Carlos spent some of the time during the dictatorship living abroad, in England, Venezuela, Mexico, the United States, and Germany. He feared that one day the military would force him to abandon Argentina permanently, and that he would have to adopt one of his temporary refuges as "home." By June 1982, however, the generals began to stumble: They lost the Malvinas War with Great Britain, and, as news about the generals' humiliating defeat came to light, public unhappiness with the regime grew. Carlos saw a faint opening and entered the realm of action, determined to restore democracy to his country.

In July 1982, still a year before the junta relinquished power and decided to call for elections, Carlos began meeting informally with a group of lawyers and philosophers who shared his commitments. This group included some of the most distinguished figures in Argentine intellectual life. Among its members were Genaro Carrio, who later became chief justice of Argentina; Eugenio Bulygin, later the dean of the Universidad de Buenos Aires and a judge of the federal court of appeals; Eduardo Rabossi, a professor of philosophy and the undersecretary for human rights during the Alfonsin administration; Martin Farrell, a noted legal philosopher and judge; and Jaime Malamud Goti, who later served Alfonsin as an adviser and then became solicitor general of Argentina. Like Carlos, these individuals were committed to restoring democracy to the country and were willing to run all the risks that entailed. Even more remarkable from the perspective of the cloistered American academy, they were also prepared to participate in partisan politics to achieve their purposes.

The first meeting of this group had its difficulties-Carlos lost the address and he, along with Eduardo Rabossi, raced up and down Avenida Pueyrredon frantically trying to find the apartment where they were to meet. From the start the group turned to the Radical Party, for it had been the traditional bearer of liberal values in Argentina, but they wanted to meet with various contenders for the leadership of the party for the purpose of deciding which one might best serve the democratic cause. They made one false start, but felt they had struck solid gold when they were introduced to Raul Alfonsin. The feeling was reciprocated. President Alfonsin made this group part of his inner circle, and affectionately referred to them as "the philosophers." Carlos began his political life as a member of "the philosophers," advising Alfonsin in his quest for the leadership of the Radical Party and in his campaign for the presidency. Later Carlos served as the president's adviser on human rights, then as the director of a commission devoted to constitutional reform.

For the philosopher king, the field of action is merely a means to actualize his ideas. For the public intellectual, as Carlos was, the causality flows in both directions. His ideas were shaped by actions just as his actions were shaped by his ideas. Carlos's intellectual agenda reflected the needs and crises of Argentina and all the other countries that summoned him; he constantly reformulated and refined his theoretical views in light of lived experience. He spoke to the world, but also was part of it.

In opening oneself to the world in this way, the public intellectual always stands in danger of being corrupted. He can easily put to one side the entrapments of petty politics, or the desire for personal advancement-never a temptation for Carlos. The real danger is that the public intellectual may forget the duality of his commitments-that he is committed to the world of thought as well as to the world of action. He may compromise his devotion to the truth in all its fullness, because he is anxious to get on with the project which he has become part. This was Carlos's burden. We talked about it on countless occasions and it weighed heavily upon his soul.

The great, great public event of his life was indeed the trial of the leaders of the junta that occurred in downtown Buenos Aires in the spring of 1985, the occasion of my initial visit, and his involvement in that event left its mark on Radical Evil on Trial, a book that Carlos wrote with great gusto and passion in the months immediately before his death. One cannot read a page of it without sensing that Carlos was moved in his writing by his profound belief in the justness of the administration's cause and the need he felt to explain the basis of that belief.

The original strategy of the administration was to focus on the leaders of the junta. Judgment was entered against fifteen of the highest-ranking officers in December 1985, but in time the swath of the prosecutors, not fully in the control of the executive, broadened. In the first few months of 1987, there was a sudden upsurge in the number of indictments, partly in response to a new law passed by Congress that closed off the time for new indictments. By the spring of 1987, more than four hundred officers, including many from the lower and middle echelons, stood indicted. Dissension within the ranks grew and in April 1987, just before Good Friday, a number of garrisons openly rebelled, requiring the personal intercession of Alfonsin to restore order on Easter Sunday. No one knows exactly what transpired in the negotiations between Alfonsin and the leaders of the rebellious forces on that day, but in May 1987, President Alfonsin proposed to Congress a law that would insulate the middle- and lower-level officers from prosecution for many human rights abuses, including torture. The intent was to create an irrebuttable presumption that those officers acted in accordance with higher orders and thus, according to Argentine law, did not have to answer for their misdeeds.

Carlos was upset by this turn of events and was unable to hide his sense of disappointment from the president. Carlos's exuberance knew no limits, and my hunch is that Carlos responded to the Alfonsin's initiative with one of his favorite expressions, "Incredible." The president asked Carlos if his opposition to this new law was based on moral grounds. Carlos answered in the negative, and then, very much the teacher, reminded the president that he, Carlos, was not a retributivist.


Excerpted from Deliberative Democracy and Human Rights Copyright © 1999 by Yale University. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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Meet the Author

Harold Hongju Koh is Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School. Ronald C. Slye is assistant professor at Seattle University School of Law.

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