Justice as Legitimacy in the European Court of Human Rights

Abstract

Using the example of the prisoner voting cases at the European Court of Human Rights, this chapter builds on existing literature regarding the legitimacy of judicial institutions to consider the role of justice with respect to the normative and sociological legitimacy of international human rights courts. The chapter identifies the pursuit of just outcomes as a significant independent influence on the legitimacy of these courts. Doing justice even when it requires expansive lawmaking in order to protect unpopular groups can be an affirmative source of legitimacy for these institutions. Although the legitimacy challenges faced by the European Court of Human Rights in connection with its prisoner voting cases are significant, the chapter argues that the Court’s retroactive narrowing of its decision in Hirst may have undermined the extent to which prisoner voting is viewed as an issue of justice. When a court that derives its legitimacy from its moral compass bows to political pressure, it risks doing violence to the perception that it is a moral actor, which may be a critical part of the foundation of its legitimacy. In some instances, taking an unpopular position and displeasing states is precisely what human rights courts are supposed to do - and in so doing, they may end up strengthening their position in the long term.