The Role of Judges of the ECtHR as Guardians of Fundamental Rights of the Individual

iCourts Working Paper Series, No. 23

25 Pages Posted: 2 May 2015 Last revised: 1 Dec 2015

See all articles by David Thór Björgvinsson

David Thór Björgvinsson

University of Copenhagen - iCourts - Centre of Excellence for International Courts

Date Written: May 1, 2015

Abstract

This paper argues that as a reaction to the criticism the ECtHR has been subject to over the last year has led the Court to adapting its judicial policy or judicial tactics by retreating from its earlier more assertive position as concerns the protection of human rights. This puts into focus questions relating to the role of judges at the Court as guardians of fundamental rights of the individual who must seek to find balance between views asserting human rights as universal rights on one hand and relative rights emphasizing pluralism, deference to national standards and fragmentation on the other. Too much emphasis on the latter to enhance the Court's legitimatization in the eyes of the judicial and political professions in the Contracting States may put the Court's "moral capital" at risk and thus weaken it claim to legitimacy on the societal level.

Keywords: Judicial strategies, judicial tactics, margin of appreciation, legitimacy, European Court of Human Rights

Suggested Citation

Björgvinsson, David Thór, The Role of Judges of the ECtHR as Guardians of Fundamental Rights of the Individual (May 1, 2015). iCourts Working Paper Series, No. 23. Available at SSRN: https://ssrn.com/abstract=2601291 or http://dx.doi.org/10.2139/ssrn.2601291

David Thór Björgvinsson (Contact Author)

University of Copenhagen - iCourts - Centre of Excellence for International Courts ( email )

Studiestraede 6
Copenhagen, DK-1455
Denmark

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