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

2016 ◽  
Vol 5 (1) ◽  
pp. 16-47 ◽  
Author(s):  
ALAIN ZYSSET
Keyword(s):  
Human Rights ◽  
Review Process ◽  
Democratic Society ◽  
European Court ◽  
Human Rights Norms ◽  
Shed Light

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.

Rola uzasadnienia sądowego w realizacji prawa do rzetelnego procesu sądowoadministracyjnego– standard strasburski

2014 ◽  
pp. 13-31
Author(s):  
Katarzyna Grzelak-Bach
Keyword(s):  
Human Rights ◽  
Legal Reasoning ◽  
Case Law ◽  
Legal Order ◽  
European Court ◽  
Protection Of Human Rights ◽  
Judicial Proceedings ◽  
Court Proceedings ◽  
Basic Level

Following a brief introduction of article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, the author begins by analyzing case law from the European Court of Human Rights regarding the legal reasoning in judicial proceedings. The main premise of this paper is to present a formula for preparing legal reasoning in administrative court proceedings. The author draws attention to the role of judges who, in the process of adjudication, should apply creative interpretation of the rules of law, when they see errors or omissions in legislative provisions, or blatant violations of the European legal order. The conclusion of those deliberations finds, that the process of tailoring the approach to meet Strasbourg’s requirements should, on a basic level, be at the discretion of judges rather than the legislators.

Islam, Gender, and Democracy in Comparative Perspective

2017 ◽  
Keyword(s):  
Human Rights ◽  
Comparative Literature ◽  
Gender Equality ◽  
Gender Inequality ◽  
Women's Rights ◽  
Women’S Rights ◽  
Muslim Countries ◽  
And Gender ◽  
Shed Light

This volume reframes the debate around Islam and women’s rights within a broader comparative literature. It examines the complex and contingent historical relationships between religion, secularism, democracy, law, and gender equality. Part I addresses the nexus of religion, law, gender, and democracy through different disciplinary perspectives (sociology, anthropology, political science, law). Part II localizes the implementation of this nexus between law, gender, and democracy, and provides contextualized responses to questions raised in Part I. The contributors explore the situation of Muslim women’s rights vis-à-vis human rights to shed light on gender politics in the modernization of the nation and to ponder over the role of Islam in gender inequality across different Muslim countries.

A rationale for the legitimacy of the world legal order: Kant’s idea of a cosmopolitan will

2020 ◽  
Vol 9 (3) ◽  
pp. 523-530
Author(s):  
CLAUDIO CORRADETTI
Keyword(s):  
Human Rights ◽  
Legal Order ◽  
European Court ◽  
The World ◽  
Global Constitutionalism

AbstractIn this contribution I provide an interpretation of Stone Sweet’s and Ryan’s cosmopolitan legal order in conjunction with a certain reconstruction of the Kantian cosmopolitan rationale. Accordingly, I draw attention to the connection between the notion of a general (cosmopolitan) will in Kant’s reinterpretation of Rousseau and the role of the European Court of Human Rights (ECtHR) as an ‘interpreter’ of such will. I conclude by suggesting that the opportunity of extending the CLO also accounts for a variety of other poliarchical regimes that, taken as a whole, illustrate the landscapes of contemporary global constitutionalism.

scholarly journals What Constitutions Can Do (but Courts Sometimes Don’t): Property, Speech, and the Influence of Constitutional Norms on Private Law

2004 ◽  
Vol 17 (1) ◽  
pp. 61-81 ◽  
Author(s):  
Oliver Gerstenberg
Keyword(s):  
Human Rights ◽  
Property Rights ◽  
Freedom Of Expression ◽  
Social Democracy ◽  
Recent Attempt ◽  
Private Law ◽  
Human Rights Norms ◽  
The Right ◽  
Higher Law

In this paper I want to address, against the background of the ECtHR’s recent attempt to resolve the clash between property rights and the right to freedom of expression in its decision in Appleby v. UK, two questions, both of which I take to be related to the overarching theme of “social democracy”. First, there is the problem of the influence of “higher law”-of human rights norms and constitutional norms-on private law norms; second, the question of the role of adjudication in “constitutionalizing” private law, in other words, the question of the “judicial cognizability” of constitutional norms within private law.

scholarly journals Intertwined but Different. The Heterologous In Vitro Fertilization Case before the European Court of Human Rights and the Italian Constitutional Court

2017 ◽  
Vol 9 (1) ◽  
pp. 34-67
Author(s):  
Antonia Baraggia ◽  
Maria Elena Gennusa
Keyword(s):  
Human Rights ◽  
In Vitro Fertilization ◽  
Constitutional Court ◽  
Vitro Fertilization ◽  
Human Rights Protection ◽  
Rights Protection ◽  
European Court ◽  
Protection Systems ◽  
Shed Light

Abstract International and constitutional law, originally distinct realms with limited areas of intersection, are getting closer and closer, particularly in the European landscape within the human rights protection field, where these mere contacts between the two systems have become intersections and overlaps. The present article will try to shed light on the still unsolved and problematic issues to which overlapping human rights protection systems give rise, by focusing on an analysis of the heterologous in vitro fertilization case, where both the Strasbourg Court and the Italian Constitutional Court delivered relevant judgments on very similar matters (ECtHR’s S.H. Judgment; Judgment No. 162/2014 from the Italian CC). Such analysis revealed useful in highlighting connections and disconnections between the different levels of protection of rights, and led us to argue that the development of a multilevel protection of rights is also, at least partially, a tale of Courts, each competing to have the last word on human rights adjudication.

Conservative Anti-HRA Rhetoric, the Bill of Rights ‘Solution’ and the Role of the Bill of Rights Commission

2013 ◽  
Author(s):  
Helen Fenwick
Keyword(s):  
Human Rights ◽  
Constitutional Reform ◽  
The Political ◽  
Coalition Government ◽  
Bill Of Rights ◽  
Conservative Government ◽  
European Court ◽  
Human Rights Act ◽  
Advisory Role

This chapter considers proposals for changes that might be made by a British Bill of Rights, as compared with the Human Rights Act, under the Coalition government, or a future Conservative government. It considers views expressed by Conservative spokespersons prior to and after the 2010 general election, and answers given by members of the Bill of Rights Commission to the Political and Constitutional Reform Committee in 2011. This chapter also touches on the second aspect of the Commission's remit — its advisory role on reform of the European Court of Human Rights. It questions whether adopting a Bill of Rights on the lines favoured by the Conservative leadership, combined with the Strasbourg reforms recently determined on, would be likely to realise Conservative aims of creating divergence from Strasbourg and enhancing parliamentary autonomy.

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