Open this publication in new window or tab >>2024 (English)In: Book of Abstracts: Human Rights - Critical Perspectives, 2024Conference paper, Oral presentation with published abstract (Refereed)
Abstract [en]
Despite its importance for upholding the rule of law, Swedish public authorities have repeatedly been criticised for failing to provide sufficient reasons for their decisions. Decisions from the Swedish Parliamentary Ombudsmen (JO), which monitors compliance, show that reasons sometimes are missing or vague and that irrelevant reasons sometimes have been given “for show”(Fura and Svensson 2015). Critiques have also been provided by human rights committees. For example, The UN Committee for the Rights of the Child (CRC) has criticised Sweden for not informing detained children and juveniles of the reasons for the restrictions, as well as for failing to explain the reasons in a manner that is understandable to them (CRC/C/SWE/CO/5). Recently, The European Committee for the Prevention of Torture and Inhumane or Degrading Treatment or Punishment (CPT) issued a critique towards Sweden regarding the placement of detainees in isolation. Upon inspection, the CPT found that there were no procedural safeguards in action, such as routines in order to respect the right to be informed of the reasons for the placement (CPT/Inf(2021/20). The above cases are only a few examples, and the lack of reasons provided within administrative decision-making is not unique to Swedish public authorities. Nevertheless, the cases illustrate a discrepancy between the importance of reason-giving and how Swedish public authorities live up to their duty to give reasons for their decisions. This speaks, or so this paper argues, for difficulties in understanding the moral importance of reason-giving in public administration and its relation to human rights. This multidisciplinary paper, combining applied ethics and constitutional law, addresses the practice of reason-giving and its relation to human rights. Administrative decision-making is in its essence the exercise of public power over individuals. In many cases, such decisions significantly impact the well-being and welfare of already vulnerable subjects. This calls for such decisions to be carefully reasoned. In administrative law, this requirement is referred to as the duty to give reasons for administrative decisions. The duty mirrors important principles in a state governed by the rule of law, such as legality, objectivity and transparency, and, as this paper argues, human rights. The theoretical starting point for the study has its roots in a Kantian tradition emphasising the idea that respect for the dignity of human beings requires that individuals are treated as autonomous agents with the capacity for moral self-government. Drawing on philosophers working within this tradition, such as Rainer Forst (e.g. 2014; 2017), it is argued that the right to reason is an emancipatory requirement based on individuals’ right to justification. If sufficient reasons for a decision are missing, affected individuals are, arguably, deprived of important information that affects their capacity to understand on what grounds the decision was taken. This, in turn, affects the agent’s ability to act out of reason. The paper comprises three sections. The first section argues that the duty to give reasons for administrative decisions should be interpreted as a duty derived from a human right to reasons. The second section addresses the constitutional role of human rights and its relation to the rule of law. The aim is to show that the suggested interpretation, while not being mainstream, is, in fact, a feasible and reasonable legal interpretation. With a focus on Swedish public administration, the third and finishing section of the paper discusses the implications that the interpretation may have for administrative decision-making.
National Category
Philosophy, Ethics and Religion Law
Research subject
Human Rights
Identifiers
urn:nbn:se:ths:diva-2634 (URN)
Conference
Societas Ethica’s 60th Annual Conference 2024 August 22–25, 2024, Uppsala/Sigtuna (Sweden)
2025-01-162025-01-162025-01-16Bibliographically approved