(Republican) democracy and the European Court of Human Rights

Abstract The relationship between the European Court of Human Rights and the ideal of democracy is a complex one: Convention states tend to understand it in terms of the supremacy of national democratic arrangements, whereas the Court has conceived of the relationship in more substantive procedural terms involving Convention rights as interpreted and promoted by the Court. In recent political debates the ideal of democracy has been instrumentalized to attack the authority of the Court based on the former understanding, such that its contribution to democratic ideals has become muted. Against this background, this article seeks to rebalance political debates about the relationship between democracy and the ECtHR by clarifying ways in which we can understand the Court as playing a democratic role based on the republican democracy of Phillip Pettit. It highlights elements of Pettit’s republican democracy relevant to the Court and analyses features of the Court and its practice which can be understood as expressing those elements. In doing so it contributes to ongoing debates about the relationship between democracy and the Court with a view to protecting and promoting the ideal of democracy in an era in which it is increasingly under threat.