ABSTRACT
Democracy and human rights are co-original, and human rights are the conditions for the possibility of the democratic debate, such that “whenever they are threatened the whole democratic edifice is threatened with collapse”. As it is ‘axiomatic’ that “democracy requires participation in the positing of the law” then one of the roles of the court in enforcing fundamental rights must be to ensure that the rights of participation are respected. S. Besson describes her approach as an attempt to define the concept of human rights, and their role in international legal practice, in a way which allows them to be ‘re-coupled’ with national democracy. The courts’ role is to protect rights as conditions of democracy – protecting the rights of participation, and protecting the elaborated basic rights which the political community has determined to be necessary in order to enable them to regulate their life together through law.
