The Legitimacy of Human Rights Courts: A Grounded Interpretivist Analysis of the European Court of Human Rights

Abstract

This article offers an empirically grounded interpretivist analysis of the social legitimacy of the European Court of Human Rights based on domestic judicial and political elite accounts of the legitimacy of the Court in Turkey, Bulgaria, United Kingdom, Ireland, and Germany. The central argument of the article is that the social legitimacy of the European Court of Human Rights is based on a constant comparison between the values and goals of domestic institutions and the values and goals of the European Court of Human Rights. More specifically, the social legitimacy of the European Court of Human Rights is grounded in the logic of a fair compromise: What actors think they lose by according legitimacy to the European Court of Human Rights must be balanced by what they perceive to gain in return. Three factors organize how actors in different domestic settings strike a fair compromise in their domestic contexts: a) perception of domestic human rights conditions, b) commitment to cosmopolitan ideals of human rights and international law, and c) commitment to domestic institutions.