A Supranational Political Process Theory? Rights, Procedures and Institutions at the European Court of Human Rights

Abstract

The consolidation of authoritarian populism depicting democratically elected leaders and parties aggrandizing their power through the routines of the democratic process has gained significant traction in the last decade. It re-engages the question of the role of courts in protecting the democratic process by reviewing the work of governing institutions prone to abuse. However, the question has for now mostly been asked in the context of a ‘self-contained’ constitutional democracy. In this article, I transpose the question onto the plane of the European Court of Human Rights (ECtHR). Central to this transposition is the conceptual challenge that while the ECtHR adjudicates rights over and above the state, in the Court’s case law these rights are significantly defined in procedural terms, often deriving institutional implications that resemble the prescriptions of the ‘political process theory’ of judicial review originally put by John Hart Ely in the context of the US constitution and recently expanded by Stephen Gardbaum and other scholars in comparative constitutional law. In surveying thematic portions of the case law, I aim to show that the concerns of ‘political process theory’ regarding institutions and procedures as core subjects of judicial review can take the route of rights. I argue that the ECtHR’s account of ‘democratic society’ provides an exemplar of such rights-based political process theory in the European human rights context and discuss both its merits and limits.