Human Rights beyond Ideal Morality: The ECHR and Political Judgment

Dimitrios Tsarapatsanis
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Dimitrios Tsarapatsanis: York Law School, University of York, Freboys Lane, York YO10 5GD, UK

Laws, 2021, vol. 10, issue 4, 1-23

Abstract: The aim of the article is to propose and defend a distinctively political reading of the European Convention of Human Rights. Drawing on a range of different sources, my core claim is that realistically construed considerations of political legitimacy, stemming from the institutional context within which ECtHR judges operate, can explain and justify a morally non-ideal understanding of Convention rights on the part of the Court. I call the kind of non-ideal reading of the ECHR that I defend ‘political’ because it results from distinctive concerns regarding the Court’s legitimacy in a wider context marked by the circumstances of politics, broadly understood. These concerns depend on apprehending the ECHR as a distinctive institutional-cum-legal regime or system whose stability has political underpinnings. Tackling them requires resorting to some form of political judgment aimed at working out how various normative parameters, including legitimacy and stability, interact with a morally ideal (or ‘first-best’) understanding of any given ECHR right.

Keywords: human rights; ECHR; interpretivism; political judgment (search for similar items in EconPapers)
JEL-codes: D78 E61 E62 F13 F42 F68 K0 K1 K2 K3 K4 (search for similar items in EconPapers)
Date: 2021
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Persistent link: https://EconPapers.repec.org/RePEc:gam:jlawss:v:10:y:2021:i:4:p:77-:d:653917

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