European Court of Human Rights in Pursuit of Public Reason? A Study of Lost Opportunities

Wojciech Sadurski considers how the European Court of Human Rights (ECtHR), an emerging European constitutional court for human rights, has engaged in a public reason compatible scrutiny of legislative aims pursued by national laws interfering with the proclaimed rights. Sadurski concludes that the Court has almost always eschewed its authority to evaluate the aims of state laws or decisions in this way. On the very few occasions when it did express its doubts about the plausibility of the aims cited by the governments concerned, the Court either refused to attach any weight to these doubts and moved on to the next stage in the analysis (the necessity scrutiny). The main burden of the aim scrutiny was therefore shifted to the necessity stage, when the Court assessed whether the restrictions were necessary (in a democratic society) to attain this aim. Sadurski offers an explanation for this puzzling (as he claims) argumentative maneuver. Challenging the state at stage of aim ascertainment brings the Court into a head-on collision course with the state and risks weakening the Court’s legitimacy, which is tenuous at the best of times anyway.