Is There Public Reason in Strasbourg?

Abstract

Like many constitutional courts around the world, the European Court of Human Rights has occasionally engaged in scrutiny of the legislative aims pursued by national laws interfering with proclaimed rights – scrutiny which may be interpreted in terms of the liberal ideal of public reason. However, the Court has eschewed its authority to conduct this inquiry directly, at the stage of the proportionality analysis dedicated to the assessment of legislative aims cited by governments in defence of the laws impugned. First, the Court has almost always been willing to accept governments’ recitals of “legitimate goals” at face value, even if those declarations are clearly disingenuous. Second, it has applied the “necessity” requirement in a way that often makes it difficult to discern true legislative aims. Third, there is the puzzling case of “protection of morals” as a legitimate ground for the restriction of rights, which has been interpreted by the Court occasionally in a way incompatible with the ideal of public reason.

Keywords: European Court of Human Right, Public reason, Proportionality, Protection of morals, Legitimacy

JEL Classification: K10, K30