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Alain Zysset, The ECHR and Human Rights Theory: Reconciling the Moral and the Political Conceptions (London: Routledge, 2016)

Submitted by on 22/11/2016 – 6:15 pmNo Comment

The book is addressed to two different and traditionally separated audiences, normative human rights theory on the one hand and European human rights law on the other. The book responds to the current state of the literature in those two fields. First, it is addressed to normative human rights theorists in testing the two overarching theoretical approaches to the foundations of human rights that pervade the philosophical literature, the moral and the political, against the practice of the European Convention on Human Rights (the authority of the Convention in national legal orders and the reasoning of the well-accomplished European Court of Human Rights). The book also brings the normative debate forward in arguing that this legal and judicial practice offers space for a reconciliation of the two approaches through democratic theory. In confronting theory and European practice, the book also draws attention to the fast-developing European scene of human rights in a field that is dominated by global approaches.

Second, it is addressed to (European) human rights lawyers and legal theorists. The book takes the law seriously in reconstructing the Convention’s and the Court’s history, in capturing the authority of the Court in national legal orders and in analysing both the judicial powers and the reasoning of the Court through the most recent case law (on Articles 8 – 11). To this end, the book relies on the most recent literature in international and European human rights law before turning to normative evaluation and abstract theorizing. With a few exceptions, the Convention and Court are under-theorized. More precisely, while the descriptive and analytical legal literature on the Convention and the Court is developing exponentially, they have not yet been objects of normative evaluation. The book responds to this lack and pleads for a mutually enriching dialogue between international lawyers on the one hand and legal and political theorists on the other.

The book offers a democratic defence of the authority of the Court. It illustrates how a conception of democracy – more specifically, the egalitarian argument for democracy developed by Thomas Christiano on the domestic level – can illuminate the reasoning of the Court, including the allocation of the margin of appreciation on a significant number of issues. I argue that the justification of the authority of the Court – its prominent status in the domestic legal orders – reinforces the democratic process within States Parties, thereby consolidating our status as political equals in those legal and political orders.

The book may also raise the interest of two other audiences that are not specifically targeted. First, the book incorporates the most recent works in human rights history. While it does not question the validity of historical claims, the book critically uses them to approach the Convention and the Court by addressing the history of the Convention and the Court as an international legal and political object. Second, while the book is primarily addressed to an academic audience, it may also attract a wider audience interested in the normative legitimacy of the Convention and the Court. The Court is under increasing criticism in the European political realm for its alleged lack of democratic legitimacy. Although the book neither records nor addresses those criticisms directly, it has important implications for this debate as the main argument relies on democratic theory. In this sense, the book also aims to take a stand in the debate on the legitimacy of international/human rights courts.

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