The four horsemen of illegitimacy? Unveiling the ECtHR’s interpretation of its legitimate aim requirement through a comparative categorization of illegitimate aims

ABSTRACT Most rights in the European Convention on Human Rights are qualified, meaning that restrictions imposed upon them can be justified. To that end, the aim in pursuit of which the State adopted the restriction is critical, with the European Court of Human Rights (ECtHR) requiring that this aim be legitimate. In practice, however, the ECtHR does not regard this ‘legitimate aim’ requirement with much interest, resulting in the appearance that nearly all aims will pass this test. Yet, there are a few aims that the ECtHR has rejected in its case law. Drawing inspiration from the case law of the US Supreme Court, an institution that does scrutinize governmental purpose more consistently, this article asks what the ECtHR can learn from the aims that have been denounced as illegitimate by the US Supreme Court. The article provides a two-fold argument. First, assessing aims through the lens of illegitimacy rather than legitimacy provides important lessons for the ECtHR. Second, the ECtHR would benefit from linking its legitimate aim analysis more closely and consistently with the principles and values of a democratic society, which constitute the basis for findings of illegitimacy in the ECtHR’s case law.