Just Access co-organiser of a side event on the Third session of the Forum on Human Rights, Democracy and the Rule of Law on “Equal access to justice for all: a necessary element of democracy, rule of law and human rights protection”

Thank you very much! The theme of the third session of the UN Forum on Human Rights, Democracy and the Rule of Law is “Equal access to justice for all: a necessary element of democracy, rule of law and human rights protection”.1 It would be easy and wrong to imagine a set of clear, limited, specific links between these four things, namely access to justice, democracy, rule of law and human rights, and to imagine that we can identify these links, and develop their technical legal meaning and substance. A bit like when we meet half-forgotten second cousins at a big family wedding, and we’re trying to figure out exactly how we’re related, and if we’ve met before, or should meet again.

But the link between these four legal principles is not like that. In terms of law’s evolution, and current and hopefully future state, access to justice, democracy, rule of law and human rights protection are not distant cousins with clearly defined, narrow connections, but more like identical twins or quadruplets. They are almost the same thing. “Democracy” means rule of law by and for the people, predicated on procedural and substantive rights, among which equal access to justice is paramount. It is not the case that the four principles need to be forcibly connected via legal practice – they are facets of the same unified foundational norm. Legal practice that involves any of them must take the others into account. None of them stands without the others. Recent attempts by legal academics and practitioners, such as William Schabas, to recapture this unity between the four principles at the heart of this UN Forum often describe the norm that unites them as “dignity”, which means the value of an individual, and a term that was used through most of history as an expansive synonym for human rights in a legal order.2

I also think that the Forum, and vital side events like this, can use the four principles to move away from the West-centrism that is coded into public international law and the UN. Democracy, access to justice, the rule of law and human rights are not specific to the West historically: city-states in ancient Mesopotomia or the Indus Valley were no less democratic than Sparta or Athens by any plausible definition. In fact, “democracy” was a swear word and a synonym for anarchy in the West until the mid-nineteenth century. As Bernard Manin, John Dunn and other historians have shown, the rule of law, human rights and access to justice were unambiguously and consistently called republican, not democratic principles, and it was not until republicans tried to outbid one another for political gain that “democracy” was revived as a strange, anachronistic label, a catch-all term that proved successful exactly because it has no clear meaning and even allowed for technically anti-democratic arguments, such that monarchs or small governments can represent the public interest as well as direct participation did in Antiquity.3 Therefore realising that there’s no access to justice, democracy, rule of law or human rights protection without each of these four principles present can become a way to critically and constructively overcome the historical accident of 19th-century abuses and instrumentalisations of both constitutional and international legal orders.

The growing case law and theory focused on dignity is a useable starting point. Next time you see a grand rhetorical appeal to democracy, ask how the proposition in question supports individuals’ right to dignity, which is a higher-order value from which democracy can flow. The insight concerning the inseparability of the four principles is another option. Next time you hear a State claiming it’s protecting human rights, ask whether its protection is systemic and structural, through democratic institutions that provide fair and universal access to justice under the rule of law. Noting that the four principles are genetically identical, or facets of the same prism, can help to check empty State rhetoric, sleights of hand or vagary.