Zysset, A. (2016) Searching for the legitimacy of the European Court of Human Rights: The neglected role of ‘Democratic Society’. Global Constitutionalism, 5(1), pp. 16-47. (doi: 10.1017/S2045381716000022)
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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.
| Item Type: | Articles |
|---|---|
| Status: | Published |
| Refereed: | Yes |
| Glasgow Author(s) Enlighten ID: | Zysset, Dr Alain |
| Authors: | Zysset, A. |
| College/School: | College of Social Sciences > School of Law |
| Journal Name: | Global Constitutionalism |
| Publisher: | Cambridge University Press |
| ISSN: | 2045-3817 |
| ISSN (Online): | 2045-3825 |
| Published Online: | 07 March 2016 |
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