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Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of ‘Democratic Society’

Zysset, Alain

Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of ‘Democratic Society’ Thumbnail


Authors

Alain Zysset



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.

Citation

Zysset, A. (2016). Searching for the Legitimacy of the European Court of Human Rights: The Neglected Role of ‘Democratic Society’. Global Constitutionalism, 5(1), 16-47. https://doi.org/10.1017/s2045381716000022

Journal Article Type Article
Acceptance Date Jan 20, 2016
Online Publication Date Mar 7, 2016
Publication Date Mar 7, 2016
Deposit Date Oct 31, 2017
Publicly Available Date Nov 1, 2017
Journal Global Constitutionalism
Print ISSN 2045-3817
Electronic ISSN 2045-3825
Publisher Cambridge University Press
Peer Reviewed Peer Reviewed
Volume 5
Issue 1
Pages 16-47
DOI https://doi.org/10.1017/s2045381716000022

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Copyright Statement
This article has been published in a revised form in Global Constitutionalism https://doi.org/10.1017/S2045381716000022. This version is free to view and download for private research and study only. Not for re-distribution, re-sale or use in derivative works. © Cambridge University Press 2016.




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