Consequential Harms and the Rule of Law: Liberty-limiting Principles in the Context of Transition

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Abstract

The consequences of restricting or not restricting the right to freedom of assembly are potentially magnified in transitional societies. Yet determining whether such consequences are indeed ‘harmful’, and whether their cost should be borne despite the harms caused, requires the elaboration of criteria which define what are valid and relevant harms. While a human rights framework can perform this task, open-textured rights standards prescribe neither the threshold of legal intervention nor the goals of transition. By extension, the rule of law - underpinned by this rights discourse - is silent about whether liberal or communitarian ideals should inform the reconstruction of public space in conflicted or nascent democracies. Illustrated by analysis of legal interventions in parade disputes in Northern Ireland, this article argues that the rule of law is necessarily orientated by ethical consensus about its scope. Furthermore, this consensus operates as a restraint upon the degree of normative discontinuity permitted during transitional compromises. The article frames the ethical options in terms of three liberty-limiting principles - the argument from democracy, the argument for toleration, and the argument for recognition. Each suggests different parameters for the transitional project and for the role of law within it.
Original languageEnglish
Pages (from-to)75-100
Number of pages26
JournalOxford Journal of Legal Studies
Volume27
Issue number1
DOIs
Publication statusPublished - 2007

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