Fundamental rights and democracy: between synergy and conflict

Abstract

The purpose of this article is to show the relationship between rights and democracy, more specifically when fundamental rights are essential to promote democracy and when - and if - democracy can enforce rights. In the first part, I will try to confront the idea of a substantive democracy, in which the promotion of rights would be essential for democracy itself and vice versa. I will deal with minimalist, representative, and participatory theories of democracy, showing that they are not the most adequate to protect rights. In the second part, I will analyze Habermasian democracy, demonstrating the relation between the promotion of rights, in view of the distributive character of communicative freedoms and the demands that it imposes on the deliberative process. In the third, I will deal with the limits that any conception of democracy might face when it concerns to justice, especially moral disagreements and questions that deal with conceptions of good or eminently controversial metaphysical doctrines, which justifies its removal from the public debate. I conclude that the synergy between rights and democracy is partial, since there are limits to the procedure to ensure rights and freedoms unrelated to the democratic game, requiring a liberal-egalitarian criterion of political legitimacy.