The Missing Middle: Procedural Rights in the Human Rights System By Aaron Tucek
This post is the fourth installment in a series titled — The Matter of Human Rights. In this 16-part series, University of Chicago law students examine, question and reflect on the historical, ideological, and normative roots of the human rights system, how the system has evolved, its present challenges and future possibilities. This post examines the intrinsic value of procedural/access rights and their role in securing substantive rights.
The Missing Middle: Procedural Rights in the Human Rights System
By: Aaron Tucek
University of Chicago Law School Class of 2019
During the Thanksgiving holiday, I had a conversation with a family member about my aspirations for a legal career. I told her that I planned to become a human rights and civil liberties lawyer to serve poor and marginalized communities. She gave me a skeptical look — “that’s all well and good,” she said, “but who is going to protect my rights?”
My relative raised a valid point. Blasting by a coal company at a nearby strip mine had damaged homes in her rural community. The damage was minor — mostly cracked floor tile or dry wall — but the company refused to honor claims and issue reimbursements from the fund it had set up for precisely that purpose. The damage, while meaningful to the homeowners, was often not severe enough to warrant the cost of hiring a lawyer and litigating the matter in court. So folks lived with it, while the mining company continued the long King Coal tradition of exploiting the Appalachian community in which it operated.
My relative described a failure of law. Her question “who is going to protect my rights?” reflected dual intuitions that people were not being treated fairly and that no one in power cared. She had good reason to feel this way. Although the minor damage described by my relative seems slight and easily dismissible, it is the latest in a long series of indignities endured by her community. Coal companies have abused coal country for generations: fraudulently acquiring mineral rights, mistreating workers, and destroying the landscape. The same mining operation whose blasting damaged homes has also left the tap water unsafe to drink, an enduring legacy that continues years after the mine has ceased to operate.
For the people of this region, the law has never done much to respect their dignity, consistently placing industrial interests ahead of their own. Legal protection was and is a luxury generally available only to those who can afford it. Unfortunately, this is not a problem unique to the coal fields of Eastern Kentucky and West Virginia. In practice, large swaths of working- and middle-class Americans likely lack the means to vigorously enforce their rights. The public interest legal community — including legal aid and direct service providers, public defenders, and impact litigators — attempt to fill this gap, but the demand for such services far outpaces the available supply. An unfortunate but necessary consequence of this shortage is triage, with public interest providers prioritizing the most severe or urgent cases.
Access to legal services in the United States could thus be said to have something of a “missing middle” problem. The wealthy can purchase robust protection of their rights, while public interest providers target the worst abuses. Left out of the picture are those unable to afford private representation yet who also endure legal injuries insufficiently severe to pass the public interest triage. When access to legal vindication is a matter of either luxury or charity, asking “who is going to protect my rights?” makes a lot of sense.
For human rights advocates, any chorus of voices asking this question should give cause for concern. By indicating a lack of access to meaningful remedies, the question’s prevalence in a community acts like the proverbial canary in a coal mine. In a well-functioning legal system, people should feel secure in their rights and not question their ability to vindicate them. The persistence of such questions indicates that procedural rights — the crucial structural components of the human rights universe — require attention and investment.
Human rights are, by definition, universal. As my colleague described, human rights are “inalienable rights that people have just by virtue of being human.” In documents such as the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR), and the International Covenant on Economic, Social, and Cultural Rights (ICESC), the international community has attempted to formally define what such rights entail. But if people feel that they have no avenue for legal recourse, formal enumerations of rights become little more than academic exercise. Moreover, it subverts the universality principle critical to human rights if access to rights protection depends mostly on resource constraints. In other words, there is a problem in the universe of rights if large chunks of people feel that they have no stake in the human rights system because its remedies are not available to them.
The international human rights system attempts to account for this problem by guaranteeing certain “procedural” rights. The bulk of the UDHR and other human rights documents enumerate and protect what might be thought of as “substantive” rights: obligations that governments have to the people. The UDHR’s prohibition of slavery or guarantee of the right to education are examples of substantive rights. By contrast, procedural rights describe how governments must function. The UDHR provides for several key procedural rights:
· The right to an effective remedy for rights violations (Article 8);
· The right “to a fair and public hearing by an independent and impartial tribunal” in civil and criminal matters (Article 10);
· The right to a presumption of innocence, public trial, and presentation of defense in criminal matters (Article 11);
· The right to take part in government, to have government based upon “periodic and genuine elections which shall be by universal and equal suffrage,” and to have free voting procedures (Article 21);
· The right to have limitations on the exercise of freedom determined by law (Article 29).
There is an understandable temptation to view these rights as somehow less important than other human rights. In comparison to the prohibition on torture, guarantee of free expression, or unequivocal commitment to antidiscrimination, procedural rights are boring. We should resist this temptation. The right to an effective remedy could compensate torture victims and provide a strong incentive for police to reform practices; a fair trial could make the difference between freedom and years of wrongful imprisonment; and democratic government could provide for the creation of a strong educational system. Procedural rights are crucial for securing substantive human rights protections.
At the same time, viewing procedural rights as valuable only insofar as they help protect and promote other substantive protections reinforces the missing middle problem. If procedure is viewed as lacking any intrinsic value, then society requires procedural protections only to the extent necessary to achieve a minimally sufficient baseline of substantive rights protection. One result of such a mindset is the public interest triage described above. Severe abuses are generally avoided (or remedied), but many people whose rights have been denied or curtailed feel shut out of the system.
The missing middle problem, therefore, reflects a failure to recognize the profound inherent value of procedural human rights. Meaningful access to legal representation, the ability to assert grievances before impartial courts and adjudicators, and the unhindered capability to participate in self-government reinforce and promote inherent feelings of self-worth within members of society. As law professor and political philosopher Jeremy Waldron argues, strong procedural protections reflect a deep respect for human dignity. Waldron identifies two ways that judicial procedures achieve this purpose. First, impartial hearings “respect[ ] the dignity of those to whom the [social or legal] norms are applied as beings capable of explaining themselves” (emphasis in original). Secondly, the opportunity to argue for a favorable interpretation of law or its application to facts
“conceives of the people who live under [the law] as bearers of reason and intelligence. They are thinkers who can grasp and grapple with the rationale of the ways they are governed and relate it in complex but intelligible ways to their own view of the relation between their actions and purposes and the actions and purposes of the state.” (emphasis in original)
Procedural rights thus are not merely means to the end of substantive rights protection; they are crucial on their own merits for supporting human dignity. To illustrate, consider again the example of the Appalachian coal field communities. To be sure, affordable access to legal representation and courts is not a panacea that will magically solve the problems facing the rural working class. But it likely would help people going through uncertain economic circumstances feel secure as equal members of society, with greater tools of self-advocacy at their disposal and more insulation from the ebb and flow of forces beyond their control.
This connection between procedure and dignity thus gets to the core of the missing middle problem. When people are unable to access the legal system, believe that the system has lost its impartiality, or find that their votes do not matter, they suffer direct dignitary harms. On top of any substantive rights violations they experience, the failure to recognize their procedural rights literally communicates that they are less valuable as people than other members of society. Thus, the denial of procedural rights for African-Americans served as a crucial feature of the Jim Crow laws that enforced racial segregation in the United States. Preventing African-Americans from participating in civic life purposefully communicated to black residents that they mattered less than white residents — while also enabling the commission of horrific atrocities against them.
Furthermore, the central role and importance of state institutions in ensuring compliance with human rights protections enhances the impact of procedural rights or the lack thereof. Although enumerated at an international level, most of the work implementing and enforcing human rights occurs at the national level. Indeed, the language of the enumerated international rights is purposefully broad in order to respect the differing values various societies and cultures will bring to the project of implementation. The United States, for example, protects free expression more than privacy, while Europe gives greater weight to privacy and less to free expression. The international system specifically identifies national fora as the level at which tensions between rights can be debated and resolved.
Because of this responsibility delegated to national governments, procedural rights constrain the operation of government and ensure that everyone’s voice is represented in deliberations regarding the implementation of substantive rights. This is a critical point. Human rights adhere to people by virtue of their being people. Regardless of sovereignty, politics, or government considerations, individuals have these rights as such. No individual or group of individuals has the right to alter, reduce, or eliminate the human rights of another. Society, therefore, may not legitimately make decisions impacting the human rights of its members without their participation in the decision-making process. By creating adjudicative, electoral, and legislative venues, procedural rights ensure that individuals have access to and may participate in these debates.
Consequently, the failure to adequately respect procedural rights not only directly belittles the dignity of the affected people, but also pushes them out of important conversations regarding their rights — reinforcing the sense that they have limited or lesser value to society. Furthermore, because of this exclusion, violations of procedural rights call into question the validity of subsequent decisions regarding substantive rights. Procedural failure thus represents a rot that can threaten the entire system. Human rights are meant to be empowering; procedural rights ensure that they actually empower people.
Viewed in this light, many people asking “who is going to protect my rights?” signal a procedural failure. Such people recognize that they have substantive rights, but either cannot obtain an effective legal remedy for the violation of those rights or cannot use the democratic process to strengthen the implementation of those rights. Either way, the underlying substantive rights are cheapened as a result and those affected suffer a direct harm to their dignity as people.
Procedural violations disempower; over time, this disempowerment can undermine feelings of social worth, limit access to substantive rights, and threaten the stability of the entire system. In short, procedural rights are indispensable. They provide the crucial scaffolding that can bind us all together in our common humanity for the pursuit of greater freedom and dignity for all people. Ensuring meaningful democracy, building upon the rule of law, and expanding access to the law’s protection are critical to the success of the human rights system.