Conclusion
It has been argued in this paper that it is possible to structure adjudication of human rights in a way which strengthens rather than detracts from democracy. Judges should not substitute their opinion for that of decision-makers; but nor should they simply defer.
Instead, I have proposed a model based on ‘bounded deliberation': one which requires both legislatures and courts to be able to give a deliberative (rather than interest-oriented) account of their interpretation and delivery of human rights and their limits. Human rights should only be addressed within a democracy through deliberative means rather than through interest-based bargaining. The power of the principle must itself be the reason for adopting it, rather than the numbers of those who back it. It is here that the courts are in a position to make a unique contribution to democratic resolution of human rights issues.This approach leaves open a number of questions. For example, should deliberation take place within the legislature, or is it sufficient for the government to put forward deliberative justifications for the purposes of the litigation? Is an ex post facto deliberative justification sufficient? Conversely, is it problematic if deliberation takes place with an eye on the ‘judge over your shoulder'? That is, is it self-defeating if decisions are taken expressly with a view to conforming with judicial prescriptions? Particularly problematically, are there situations in which no explanations will meet the test of bounded deliberation? However, once we move beyond a rigid dichotomy between courts and legislatures towards more collaborative approaches, the solutions are not nearly as intractable as might be thought.