"On the Necessity of Judicial Review for Democratic Governance"
 

The European Court of Human Rights has been criticized for unduly interfering in the outcomes of democratic decision processes. Some argue that the unelected Strasbourg activists in robes should not interfere with democratically supported policy decisions that were made nationally.

My inaugural lecture analyses this practice of rights-based judicial review.

The first part presents a general legal-philosophical background. I explain that republicans, who emphasize the importance of the democratic way of self-governance, are in favour of weak forms of judicial review. Liberals, on the other hand, prioritize the protection of fundamental rights through the constitution, and are in favour of strong judicial review.

The second part employs this conceptual toolbox to analyse judicial review as exercised by the Strasbourg Court. Should we understand it as strong, weak, or as something in between? I conclude that it is best understood as a weakened version of strong judicial review.

The third part provides a normative evaluation of the role of the Strasbourg Court in the current European constitutional landscape. I argue that the Strasbourg Court should pursue a path towards stronger rights-based judicial review.

Click here for the live stream.