'Law Over Legalism': International Court Legitimacy in Lautsi v. Italy

52 Pages Posted: 23 May 2022

Date Written: May 19, 2022

Abstract

2009 brought an existential crisis to the European Court of Human Rights (ECHR). In November, it unanimously ordered Italy to remove crucifixes from public schools. Backlash was unprecedented. The government promptly announced it would not comply. Politicians and social actors all across the political spectrum harshly criticized the decision and bashed the Court. Ten European countries joined Italy in referring the case to the Grand Chamber of the Court, which in 2011 reversed the decision. The storm was appeased. Lautsi v. Italy was the ECHR judgment to receive the most public attention in history. Much of the Court’s subsequent case-law was decided with an eye on avoiding another Lautsi.

This Article performs a thick description of the social and political reactions to the Lautsi judgment in Italy in order to answer urgent questions in international law: How do international courts legitimate their decisions, and why are they have facing increasing trouble in doing so?

Lautsi and its aftermath suggest that international courts’ decisions are not legitimated merely through the soundness of their legal reasoning, but by their ability to be perceived as consistent with national identity. Political debate will strive to situate a controversial decision as aligned with national values and mores. A successful international judicial decision is one that helps a community to find their better self.

Keywords: international courts, legitimacy, European Court of Human Rights, Lautsi v. Italy

Suggested Citation

Guidi, Sebastian, 'Law Over Legalism': International Court Legitimacy in Lautsi v. Italy (May 19, 2022). Duke Journal of Comparative & International Law, Forthcoming, Available at SSRN: https://ssrn.com/abstract=4113564 or http://dx.doi.org/10.2139/ssrn.4113564

Sebastian Guidi (Contact Author)

Yale University, Law School ( email )

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