Andreas Follesdal, Building Democracy at the Bar: The European Court of Human Rights as an Agent of Transitional Cosmopolitanism (March 5, 2016). Transnational Legal Theory, Forthcoming; PluriCourts Research Paper No. 16-05; University of Oslo Faculty of Law Research Paper No. 2016-09. Available at SSRN
How, if at all, does the European Court of Human Rights (ECtHR) promote more just states which vary greatly in their democratic credentials? The article considers the ECtHR and its practices from the perspective of ‘non-ideal theory,’ namely how it helps states become more stable and just, and more compliant with the human rights norms of the European Convention on Human Rights. The article first sketches what is meant by ‘non-ideal theory,’ then considers aspects of the Council of Europe and the ECtHR, which promote transitions toward more just member states. The ECtHR’s practices suffer from at least two weaknesses in this regard: it assumes with insufficient argument that standards appropriate for ‘ideal theory’ conditions of full compliance also should apply to states that suffer from wide ranging noncompliance, or from unjust institutions. Secondly, the Court relies on an ‘emerging European consensus’ with insufficient empirical and normative justification.