The Right to Rule of the European Court of Human Rights: A Democratic Defense

In this thesis, I develop an objection to the claim that the "right to rule" 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 of the Court and on the implications it has on the identification of duties and duty-bearers (with particular emphasis on Articles 8-11). Third, I argue that Thomas Christiano's egalitarian argument for democracy can best illuminate the Court's emphasis on pluralism, making the search for public equality the implicit normative ideal of the Court.LL.M