Special Issue "How Judges Think about Human Rights: Legitimacy and Political Judgment"

A special issue of Laws (ISSN 2075-471X). This special issue belongs to the section "Human Rights Issues".

Deadline for manuscript submissions: closed (30 August 2021).

Special Issue Editor

Dr. Dimitrios Tsarapatsanis
E-Mail Website
Guest Editor
York Law School, University of York, York, YO10 5GD, United Kingdom
Interests: human rights; bioethics; legal theory; constitutional theory; artificial intelligence and law

Special Issue Information

Dear Colleagues,

To a significant extent, extant approaches to aspects of judicial decision-making with regard to domestic and/or international human rights law are clustered around specific disciplinary approaches that relatively rarely, if ever, come into real, let alone conceptually fruitful, contact. On the one hand, legal doctrinal approaches mainly gloss the case law of international and/or domestic adjudicative bodies on the assumption that some kind of formalist approach is more or less sufficient when it comes to explaining judicial decision-making in this area of law. Legal scholars working in the area of human rights law thus mostly provide theorizations of human rights by systematizing case law around more general principles and concepts. On the other hand, political and moral theorists have lately vigorously debated the question about the ‘nature’ of human rights, including legal human rights, albeit without thinking more systematically how, if at all, abstract moral accounts of human rights can be incorporated within a larger and sufficiently informed view of the institutional and political realities of judicial decision-making in human rights law. Last, political science approaches have produced an ever-expanding literature on the causal determinants of judicial decision-making with regard to human rights law, but without always a very clear idea of how this causal picture sits with respect to other kinds of candidate explanations of judicial behavior, such as legal formalism or moral reasoning. There is thus a gap in the literature with respect to approaches that combine and synthesize legal, moral/political and empirical perspectives on judicial decision-making in the area of human rights.

In this context, the call for papers for this Special Issue specifically seeks interdisciplinary and/or collaborative contributions addressing these issues. A convenient (but by no means mandatory) starting point for systematic reflection could begin with the pivotal role of the legitimacy of domestic or international courts when it comes to adjudicating human rights claims. The driving idea is that at least a subset of human rights judgments is (or can become) politically controversial from either a descriptive or a normative point of view. Such judgments typically trigger various reactions, positive or negative, on the part of other political and social actors. Accordingly, judges deciding human rights claims seem to be making, or perhaps even ought to be making, some kind of political judgment when taking these decisions, in addition to their legal or moral reasoning in a stricter sense. At the same time, judges also standardly operate under the distinctive constraint to provide legal reasons for their decisions, and thus have to ‘dress up’ their political judgment in formalist modes of justification. The call for papers especially targets interdisciplinary approaches that straddle the divide between legal scholarship, political theory and empirical political science (or, more broadly, socio-legal approaches) to address these issues. In this context, topics of interest to the call for papers include, but are not limited to:

  • The nature and limits of ‘standard’ legal formalist explanations of human rights judgments
  • The respective roles of moral and political judgment from both a descriptive and a normative point of view in human rights decisions
  • The descriptive and normative aspects of judicial legitimacy in the field of domestic and international human rights adjudication
  • The idea of legitimacy in that same field as a distinctive kind of concern than influences (or should influence) judicial decision-making
  • The various actors and ‘audiences’ that are or should be taken into account when addressing issues of legitimacy in the above sense (e.g., other courts, domestic or international political actors, scholarly and professional communities or other social actors)
  • New challenges to judicial legitimacy in the field of human rights adjudication
Dr. Dimitrios Tsarapatsanis
Guest Editor

Manuscript Submission Information

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Keywords

  • human rights
  • political judgment
  • judicial reasoning
  • political theory and political science

Published Papers (2 papers)

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Research

Article
Human Rights beyond Ideal Morality: The ECHR and Political Judgment
Laws 2021, 10(4), 77; https://doi.org/10.3390/laws10040077 - 12 Oct 2021
Viewed by 1125
Abstract
The aim of the article is to propose and defend a distinctively political reading of the European Convention of Human Rights. Drawing on a range of different sources, my core claim is that realistically construed considerations of political legitimacy, stemming from the institutional [...] Read more.
The aim of the article is to propose and defend a distinctively political reading of the European Convention of Human Rights. Drawing on a range of different sources, my core claim is that realistically construed considerations of political legitimacy, stemming from the institutional context within which ECtHR judges operate, can explain and justify a morally non-ideal understanding of Convention rights on the part of the Court. I call the kind of non-ideal reading of the ECHR that I defend ‘political’ because it results from distinctive concerns regarding the Court’s legitimacy in a wider context marked by the circumstances of politics, broadly understood. These concerns depend on apprehending the ECHR as a distinctive institutional-cum-legal regime or system whose stability has political underpinnings. Tackling them requires resorting to some form of political judgment aimed at working out how various normative parameters, including legitimacy and stability, interact with a morally ideal (or ‘first-best’) understanding of any given ECHR right. Full article
Article
Justice for All in the Americas? A Quantitative Analysis of Admissibility Decisions in the Inter-American Human Rights System
Laws 2021, 10(3), 56; https://doi.org/10.3390/laws10030056 - 04 Jul 2021
Viewed by 1775
Abstract
The overwhelming majority of unsuccessful petitions in the Organization of American States’ Inter-American human rights system are unsuccessful because they are dismissed at the pre-admissibility or admissibility phase rather than at the merits phase. Although this preliminary screening of applications constitutes the major [...] Read more.
The overwhelming majority of unsuccessful petitions in the Organization of American States’ Inter-American human rights system are unsuccessful because they are dismissed at the pre-admissibility or admissibility phase rather than at the merits phase. Although this preliminary screening of applications constitutes the major obstacle to petitioners seeking justice, there has been relatively little scholarly analysis of the potential interplay of legal and attitudinal factors at this phase. That is, whether this phase may be where the biases that the system has been accused of (i.e., bias against leftist regimes and a “hierarchization” of negative rights and liberties over social justice) manifest themselves. This article fills this gap in the literature by undertaking a comprehensive quantitative analysis of Inter-American Commission on Human Rights admissibility decisions that measures the impact of a broad range of factors and compares the dynamics of admissibility decisions with those of merits decisions. In so doing, it places into context backlash against the system that has led to recent changes in the system’s procedures. Full article
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