Freedom of Assembly, Consequential Harms and the Rule of Law: Liberty-limiting Principles in the Context of Transition

The consequences of restricting or not restricting the rightto freedom of assembly are potentially magnified in transitionalsocieties. Yet determining whether such consequences are indeed‘harmful’, and whether their cost should be bornedespite the harms caused, requires the elaboration of criteriawhich define what are valid and relevant harms. While a humanrights framework can perform this task, open-textured rightsstandards prescribe neither the threshold of legal interventionnor the goals of transition. By extension, the rule of law—underpinnedby this rights discourse—is silent about whether liberalor communitarian ideals should inform the reconstruction ofpublic space in conflicted or nascent democracies. Illustratedby analysis of legal interventions in parade disputes in NorthernIreland, this article argues that the rule of law is necessarilyorientated by ethical consensus about its scope. Furthermore,this consensus operates as a restraint upon the degree of normativediscontinuity permitted during transitional compromises. Thearticle frames the ethical options in terms of three liberty-limitingprinciples—the argument from democracy, the argument fortoleration, and the argument for recognition. Each suggestsdifferent parameters for the transitional project and for therole of law within it.