Myth 5: Human rights are too vague for judges

Myth:  Human rights are too vague and should be left to Parliament and the Executive, which are the politically accountable arms of government, to interpret.

Reality:  It is true that the perimeters of most human rights are limited by vague measurements such as "reasonableness", "necessity", or "minimal impairment". However, judges commonly apply imprecise tests in their decision-making. For example, the "reasonable person" test has long been a part of the test for deciding if a person has acted negligently or not. Many tests in constitutional law, where judges do have power to override laws, are based on the touchstone of "reasonableness".

In any case, the vagueness of human rights law is overstated. There is a wealth of comparative and international case law to draw from in deciding if a certain action or omission breaches human rights. These cases would be highly instructive for judges making human rights decisions.

For a longer discussion of the arguments regarding judges and politics, see this section of the Castan Centre's submission to the National Human Rights Consultation.