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Peer-Review Record

Human Rights beyond Ideal Morality: The ECHR and Political Judgment

Reviewer 1: Anonymous
Reviewer 2: Anonymous
Reviewer 3: Anonymous
Reviewer 4: Anonymous
Received: 12 August 2021 / Revised: 30 September 2021 / Accepted: 3 October 2021 / Published: 12 October 2021

Round 1

Reviewer 1 Report

Very well written and interesting paper. The issues discussed are topical and make a useful intervention into the debate around the ECHR. The paper makes salient observations about the Court that is 'constrained by certain political and institutional realities'. Good selection and analysis of the Lautsi cases and the role of the margin of appreciation to highlight to contestation surrounding high profile judgements. It is a worthy project to pursue the content of a realistic normative theory in constructing judgements by the Court.

Author Response

I thank the anonymous reviewer for their comments and kind words.

Reviewer 2 Report

 I highly recommend the publication of this paper.

Author Response

I thank the reviewer for having reviewed the manuscript.

Reviewer 3 Report

Review of the paper:

“Human Rights Beyond Ideal Morality: The ECHR and Political Judgment”

This is an excellently written, well-argued paper with a (largely) convincing argument. It is clearly structured. I definitely want to see this paper published, however, in a revised form.

I have four main concerns that I invite the author to address and remedy. After explaining these concerns, I raise a number of smaller yet also important points deserving the author’s attention. All of these points are respectfully submitted with the aim of pointing out ways in which the author could enhance his/her analysis and argument, to make an even more compelling case; to fully exploit the paper’s potential to make an original contribution to key debates in the discipline, and to make the text more accessible for a wider audience. I hope the following comments will be received in that spirit.

 

  1. While the analysis is generally well-presented, it is rather poorly referenced. Even for the standards of legal/political theory which tends to value quality over quantity, there are too few references to key authors, concepts and debates, and those arguments and concepts which are referenced, lack precision, i. e. page numbers. The idea of references is that the referenced claim (be it in direct or indirect speech) can be easily traced back and consulted by the reader in the original source. The reference practice applied in this paper does not always meet this standard, e. g. section 2, lines 104-131, address quite concrete points, such as “significant disadvantage” etc. but lacks concrete references. The same applies to lines 155ff. with regard to the claim that “the Court is perceived by many to be balancing ...”, lines 172ff. “the Court is constantly challenged by ...”, section 4, lines 390ff. with only general references to Letsas 2009 and Letsas 2010, although the analysis deals with very concrete arguments and concepts; section 6, lines 601ff. in relation to the argument about strategic interaction in collegial courts, which contains a number of steep claims but is not supported by concrete evidence or references. Line 298 mentions “a large range of cases decided by the Court” but a reference to relevant case law is missing. Instead, there is only a generic reference to Letsas 2010.

 

  1. Related to this is another, major point: A number of important concepts and, indeed, some of the necessary basics of the ECHR system, are not explained to the reader but are assumed to be part of common knowledge. As this paper has been submitted to a Special Issue on legitimacy and political judgment in human rights adjudication which may include, but is not limited to, the European Court of Human Rights, I would strongly suggest explaining, and adequately referencing, concepts such as the proportionality principle, margin of appreciation, subsidiarity in the ECHR system, and the ECHR as a “living instrument” doctrine. Moreover, I think it is absolutely critical for the paper’s argument to briefly explain the institutional construction of the ECHR/ECtHR system and the way in which it is interlinked with the Council of Europe, and specifically, to unpack the political issues of the system’s stability and legitimacy in advance. Otherwise, the whole point of the argument about political judgment, institutional reality and stability concerns is difficult to follow for the uninformed reader. This could either be done by inserting a new paragraph in section 2 or by adding individual, explanatory sentences to sections 2 and 3 where appropriate, with additional references to key sources and relevant case law. When explaining the relevant basics of the ECHR system to the reader, I would like to encourage the author to also reflect on the historical origins of the ECHR and the evolution of the adjudication of the European Commission on Human Rights and, later, the ECtHR. In fact, I find it surprising that the paper makes an argument about political realism and the “institutional reality” of the ECHR but is completely ahistorical in its analysis of the ECHR system’s conditions of stability and legitimacy. I would therefore strongly suggest consulting key works such as AWB Simpson’s Human Rights and the End of Empire, Marco Duranti: The Conservative Human Rights Revolution, and other relevant works on the historical origins of the ECHR by Anthony Lester and others.

 

  1. The paper’s analysis and argument overlap significantly with scholarly debates regarding (a) political constitutionalism vs legal cosmopolitanism, and (b) judicial activism and strategic litigation. Neither of them is considered by the author, although they seem to be highly relevant for his/her argument about normative reasoning and political judgment in human rights adjudication. In relation to (a), I recommend consulting Richard Bellamy’s work, which deals directly with the ECHR, e. g. see: “The Democratic Legitimacy of International Human Rights Conventions: Political Constitutionalism and the European Convention on Human Rights”, in: European Journal of International Law (2014) 25:4, pp. 1019-1042. For critical replies, see e. g. Marco Goldoni. In relation to (b), I have no specific suggestion (there is a rich literature easily to be found) but would simply suggest engaging with discussions of the concept of judicial activism and clarifying the boundaries between judicial activism and what the author considers to be justifiable/adequate political judgment in judicial reasoning.

 

  1. I think that the case selection requires further reflection and explanation. Generally speaking, n=1 is not a methodologically sound sample to prove a point. The Lautsi saga is certainly relevant, but I find it surprising that the author does not actively consider other, more recent cases which seem to be of equal, if not greater, importance for the stability and legitimacy of the ECHR system. What about the ECtHR case law in relation to Russia, Turkey, Poland, Hungary, but also the UK? To be honest, I am not up to date in relation to the UK Government’s implementation of the ECtHR rulings in the Hirst cases because I do not actively work on human rights in the UK anymore, but my suspicion is that the UK has still not adequately implemented the Courts decisions. Be that as it may, I remember that Russia used the UK’s unwillingness to implement the Hirst rulings as an opportunity to legitimize its own non-compliance (or minimal compliance) with the ECHR and the rulings of the ECtHR. Is that not an even greater threat to the ECHR system’s stability and legitimacy than Lautsi? If the author would prefer to refrain, for practical reasons, from expanding the paper’s empirical section to include other cases, I would recommend at least to explain that/why Lautsi is representative of a range of significant cases, with adequate references to relevant case law. Alternatively, the author could try to make an effort after the Lautsi analysis to show, by way of brief reflection, that the same mechanisms/similar dynamics in judicial reasoning were present in other relevant ECtHR rulings, and give 2 to 3 examples to give more weight to his/her argument.

 

Smaller points deserving the author’s attention:

(a) The argument and analysis of this paper seem to overlap significantly with the book chapter: “A political approach to Lautsi and others v Italy”, by Dimitrios Tsarapatsanis, in: Research Methods for International Human Rights Law, Routledge 2019. I would like to ask the author of the present paper to clarify in which regard the present paper makes an original argument going beyond Tsarapatsanis 2019.

(b) In relation to the general argument of the paper, I was wondering how the author would explain variation in the outcome of judicial reasoning in human rights adjudication. Why are some court rulings closer to the “moral ideal” of ECHR norms than others? Does it mean that judges take into account institutional stability and legitimacy concerns (and practice “political realism”) only in some cases and not in others? Do they think that the stability and legitimacy of the ECHR system are at stake only in some specific cases (rights norms?) and/or in relation to claims against particular States Parties and not in relation to others? I would encourage the author to spell out more clearly the parameters/influencing factors here.

(c) Section 1, lines 88ff. The author submits that the present paper develops a more complex account of normative reasoning “than the one provided by more standard narratives” and goes on to explain that “the main targets are theories that insist on a normatively optimal understanding of rights irrespective of the political and institutional realities under which ECtHR judges operate.” References to such theories are missing. To avoid giving the impression of constructing a nameless “straw man” argument, I would strongly suggest clearly identifying and referencing those authors and positions which the present paper argues against, and doing so as early as possible in the paper.

(d) Sections 2 and 3: The relationship between legal legitimacy (not defined, by the way), moral legitimacy and sociological legitimacy requires further clarification. As does the definition of legitimacy adopted by the author for the purpose of the analysis of this paper.

(e) Section 6, lines 656ff.: I would suggest deleting the references to “Scylla” and “Charybdis” – these formulations add nothing to the argument but only make the text less accessible. The same applies to the numerous phrases in Latin throughout the paper; while these are common disciplinary codes in theory/philosophy, they are not always necessary.

(f) Williams is certainly a key reference for realism in political theory but not the only one. In relation to human rights, theorists such as Raymond Geuss and, more recently, Benjamin Gregg, have also defended realistic positions. The author may wish to consider consulting these authors’ works and explaining how the paper’s grasp of realism relates to their positions.

(g) Section 7, lines 860f.: “... the ECHR regime is not merely a rule-of-law space of normative cooperation, but also a distinctive international political order that has its own internal logic of stability and legitimacy.” This is a crucial assumption underlying the whole argument of the paper and, as such, it needs to be raised at the beginning of the paper, not at the end. The same applies to the following sentence, “... the recognition that state consent is not just a one-off event but an ongoing process of acquiescence.” This insight has to be deduced from an institutional analysis of the ECHR system and has to come much earlier in the paper.

(h) Typos: line 827 “reaslitic” --> “realistic”; line 983 reference to “tsakyrakis” --> “Tsakyrakis”.

Author Response

First of all, I wish to thank kindly the reviewer for having raised all these points. I genuinely think that my attempt to address them have made the manuscript much better. More specifically:

-With regard to the first main concern, I have added many extra references and pages to references, making the claims made much more specific and easy to check. All the specific points raised have been addressed.

-With regard to the second main concern, I have provided definitions in footnotes of all the legal doctrines used, and precisified the references (with pages) where appropriate. I have also added a paragraph in the beginning of section 2 on the institutional structure of the ECHR. With regard to the history of the system, whilst I think that the points made are important and worth pursuing on their own, I did not have the time to properly address them and, moreover, would need to extend significantly an already large (16,500 words in its current form) paper. But I think that the points are important and should be pursued in future work.

-With regard to the third main concern, I have mentioned political constitutionalism and Bellamy's work in a separate paragraph, explaining briefly why I do not want, at least in this paper, to label the approach taken political constitutionalism. The overlaps, though, are very interesting and should be pursued in future work. Likewise, the enormous literature on judicial activism is not engaged with simply for reasons of time and size: a complete reworking of the paper would be needed, when the main goal is simply to put the position sketched in the paper on the map, rather than explore all its implications.

-With regard to the fourth major concern, which is particularly important, I have added an extra paragraph at the end of the penultimate section explaining how the approach could be extended to analyse other cases.

Now, with regard to the other points:

-Point (a): The focus of this article is completely different from that articulated in Tsarapatsanis (2019), especially the insistence on legitimacy and the moral reading of the Convention. It is the latter idea (that even a moral reading should incorporate the factors set out to foster moral legitimacy) that is the novelty here.

-Point (b): This is an important question and simply too big to address in this article. Moreover, I confess that I do not yet have an articulated answer to it. Much more research needs to be done on this score.

-Point (c): References have been added to Letsas and Tsakyrakis (which were the targets anyway).

-Point (d): The definition of legitimacy that was used is provided ('right to rule') and it is further explained why there is no need, given the approach taken, to talk about legal legitimacy (or define it).

-Point (e): These are now omitted.

-Point (f): I explain why the focus is only on Williams (mainly for reasons of space).

-Point (g): The point comes now in the introduction and section 2.

-Point (h): Typos corrected   

Reviewer 4 Report

In my opinion this paper can be accepted in its present form. It provides a very interesting and well-constructed argumentation on the combination of moral and political reasoning in the decisions of the European Court of Human Rights, which in my opinion opens a new direction to analyze ECHR judgments. However, I will do some very small suggestions, that, if the authors wish, could be incorporated and in my opinion improve the paper: 1. In page 18, the authors explain that political judgment has only an exceptional role in the decisions of the ECHR. Maybe this opinion should appear from the beginning of the paper. Otherwise, the reader can have the impression that lots of pages are devoted to an issue that finally seems to have only a limited role. Maybe it should be made clearer throughout the paper that moral reasoning is much more important than political reasoning in the judgments, and political reasoning has only a limited although significant role. 2. I think that the references to the jurisprudence of EHCR could be enriched. Authors devote Section 8 of the paper to comment one example of political judgment (the Lautsi decisions), and moreover quote some other judgments of the EHCR in the footnotes, but I think more examples of political judgment could be provided (at least in footnotes).

Author Response

I thank the reviewer kindly for the suggestions. As to point one, I have tried to explain myself even clearer in the introduction. As to point two (which is important), I have added a paragraph where I explore the significance of the case study.

Round 2

Reviewer 3 Report

I am satisfied with the revisions made by the author in response to my review.

Author Response

I would like once again to thank you for these precious points raised by the thorough review. They really helped strengthen the paper.

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