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Searching for the legitimacy of the European Court of Human Rights : the neglected role of 'democratic society'
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2045-3817; 2045-3825
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Global constitutionalism, 2016, Vol. 5, No. 1, pp. 16-47
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ZYSSET, Alain, Searching for the legitimacy of the European Court of Human Rights : the neglected role of ‘democratic society’, Global constitutionalism, 2016, Vol. 5, No. 1, pp. 16-47 - https://hdl.handle.net/1814/51966
Abstract
In this article, I argue against the claim that the practice of the European Court of Human Rights cannot be reconciled with the democratic-procedural standards by which state parties, in accordance with the principle of subsidiarity, decide about the content and scope of human rights norms. First, I suggest drawing the attention to the neglected balancing exercise of the review process, in which the Court has to determine whether a violation is nevertheless ‘necessary in a democratic society’. Second, I shed light on the role that ‘pluralism’ plays in the balancing (with particular emphasis on Articles 8–11). Third, I argue that Thomas Christiano’s egalitarian argument for democracy can best illuminate the Court’s reliance on pluralism.
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Published online: 07 March 2016