Tracking justice democratically

Abstract

Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with—and even a recommended component of—an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy-making. The article first offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of concern—in particular the European Court of Human Rights. The article goes on to develop some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted. The article goes on to consider the case(s) for international judicial review, arguing that such review helps secure those premises and scope conditions. The article finally considers the scope such review should have—and some objections to such an account.

Keywords:

• Epistemic democracy
• judicial review
• international human rights
• the European Court of Human Rights
• proceduralism
• legitimacy

Acknowledgements

I am grateful for comments at the Conference on Epistemic Democracy, Yale University 19 October 2011; and for very constructive and thorough suggestions from two anonymous reviewers.

Notes

1. The present account thus holds an intermediary position between ‘pure procedural’ theories and ‘pure epistemic’ theories. The former may deny that democratic procedures seek to track any ‘independent truth of the matter’ but where the goodness or rightness of an outcome is wholly constituted by the fact of its having emerged in some procedurally correct manner. (cf. Coleman and Ferejohn 1986, 7; List and Goodin 2001). The latter may hold that there is always some fact of the matter, completely independent of the outcome of the actual decision procedure followed, as to what the best or right outcome is.

2. I am grateful to an anonymous reviewer for this reminder.

3. For further objections and responses, cf. Landemore (2017).