Rule of Law, Responsiveness, and Participation as Components of the Rights-Based Approach
With the last remarks about duties we have stressed the importance of institutions; hence our basic norm that any human is entitled to access to institutions that protect their basic rights. But it is equally important to emphasize that institutions must guarantee secure, inclusive, and nondiscriminatory access to basic goods informs and by means that are themselves compatible with human rights standards. That allows us to relate the other three components of good governance, as outlined earlier, to that of human rights. Although human rights are the core of our normative approach, they internally refer to the rule of law, to responsiveness, and to public participation.
First, it is obvious that any attempt to realize human rights presupposes the rule of law. In a minimalist sense, “rule of law” stands for preventing the Hobbesian condition of violent chaos by means of rules backed by effective sanctions. But in order to ensure that those establishing and enforcing the rules do not simply seek their own advantage by abusing their extraordinary power, no authority shall be above the law. Moreover, legal rules should be seen as codes of conduct for persons capable of taking responsibility for their actions. For both reasons, they must meet certain standards such as publicity, generality, the exclusion of ex post facto laws, due process, independence of the judiciary, and equality before the law.27 To be sure, not any system that replaces the rule of people by those of law automatically shows proper respect for, and is ultimately based on, human rights. But no system of human rights would be feasible in a situation of violent chaos or of sheer arbitrariness in the use of power. In short, confidence based on legal rules is a necessary, yet insufficient, condition for realizing human rights.
On the same line of argument, we can introduce the component of responsiveness. Public authorities must be willing to fulfill the purpose they were conferred for, and the presumed beneficiaries must be able to control the degree of fulfillment. Consequently, responsiveness implies transparency as well as accountability (Keohane 2007, 8-9). The performance of those who are held to account must be transparent to the accountability holders. The latter must be able to gain information relevant for assessing structures and practices of governance at reasonable cost, and they must be able to address justified critique to concrete actors. The governance actors, in turn, must be willing to answer the critique and take the appropriate steps if necessary.
Finally, participation plays two roles in a rights-based approach of legitimacy. First, it is of instrumental value insofar as it raises the probability that those wielding power respect and realize human rights. Consider Amartya Sen’s famous claim that democratic governance is the most effective means to prevent famines. According to Sen, famines are almost always partly a consequence of political mismanagement and democratic accountability tends to inhibit grave mismanagement (1981). Second, the right to participate as a free and equal person is itself a requirement of minimal justice, based on human rights. Given the moral principle of equal respect and concern, it is always problematic that some persons should concentrate much more power than the rest of a population. Having a right to participate as a free and equal person is an expression of the basic moral principle whenever structures of governance distribute powers unequal—as almost any structure of governance does (Christiano 1996).