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The ECHR and Human Rights Theory: Reconciling the Moral and the Political Conceptions
The European Convention of Human Rights (ECHR) has been relatively neglected in the field of normative human rights theory. This book aims to bridge the gap between human rights theory and the practice of the ECHR. In order to do so, it tests the two overarching approaches in human rights theory the ethical and the political, against the practice of the ECHR ‘system’. The book also addresses the history of the ECHR and the European Court of Human Rights (ECtHR) as an international legal and political institution.
The book offers a democratic defence of the authority of the ECtHR. It illustrates how a conception of democracy – more specifically, the egalitarian argument for democracy developed by Thomas Christiano on the domestic level – can illuminate the reasoning of the Court, including the allocation of the margin of appreciation on a significant number of issues. Alain Zysset argues that the justification of the authority of the ECtHR – its prominent status in the domestic legal orders – reinforces the democratic process within States Parties, thereby consolidating our status as political equals in those legal and political orders.
The book offers a democratic defence of the authority of the ECtHR. It illustrates how a conception of democracy – more specifically, the egalitarian argument for democracy developed by Thomas Christiano on the domestic level – can illuminate the reasoning of the Court, including the allocation of the margin of appreciation on a significant number of issues. Alain Zysset argues that the justification of the authority of the ECtHR – its prominent status in the domestic legal orders – reinforces the democratic process within States Parties, thereby consolidating our status as political equals in those legal and political orders.
264 pages, Kindle Edition
Published October 4, 2016
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November 13, 2025
This book discusses how the European Court of Human Rights combines moral principles with political and legal reasoning. The book argues that the European Convention on Human Rights (ECHR) is a sui generis legal system,something that is not only international law but also acts like a moral constitution for Europe.
The author uses John Rawls’s theory of constructivism to explain how the ECHR builds its moral and political authority. Rawls believed that justice should come from fair and rational agreement among free and equal people. Similarly, the ECtHR justifies its judgments through public reason,reasons that all citizens of democratic states could understand and accept. At the same time the book notes that the ECHR also reflects Kantian moral constructivism based on respect for human dignity and rational autonomy.
The book also refers to Charles Beitz and Joseph Raz, who both describe human rights as more than just moral ideas. Beitz sees human rights as practical tools for shaping how states behave in the international system while Raz argues that human rights protect important human interests and help justify limits on state power. The ECtHR shows both these ideas in practice. It protects individual dignity (a moral goal), but it also respects political pluralism and national sovereignty (a political concern). The Court’s approach can therefore be seen as Beitzian pragmatism mixed with Razian normativity reflecting a balance between morality and world politics.
One of the central issues in the book is the doctrine of democratic necessity. While the ECtHR claims that rights may only be limited when necessary in a democratic society this principle often lacks clarity and consistency. The Court’s method of balancing individual rights against collective interests can appear overly flexible, allowing political considerations to influence its judgments. As a result, the idea of necessity sometimes serves more as a tool for legitimizing state interference than as a genuine safeguard of democracy. This raises the question of whether the Court truly protects democratic values or merely adapts them to fit political convenience.
The book also connects the ECHR’s moral foundation to Europe’s historical experience with totalitarianism. After WWII the Convention was created as a direct response to authoritarian regimes
also that gives the ECHR a deep moral purpose it is not only a legal structure but also a moral promise born from Europe’s collective memory of oppression and injustice.
In the end, the book presents the ECHR as a constructivist institution that brings together moral ideals and political realities. It does not rely on absolute truths or pure politics but instead builds its authority through continuous reasoning and justification. While The ECHR and Human Rights Theory offers a strong link between moral philosophy and law, it tends to idealize the European Court of Human Rights. The book’s reliance on Rawlsian and Kantian constructivism assumes that judicial reasoning is always rational and fair, ignoring the political pressures and power dynamics that shape many ECtHR decisions. The concept of democratic necessity though appealing in theory, can justify state restrictions under the guise of democracy. By focusing on abstract justification the book overlooks inconsistencies, selective enforcement and Eurocentric biases within the Court’s practice.
The author uses John Rawls’s theory of constructivism to explain how the ECHR builds its moral and political authority. Rawls believed that justice should come from fair and rational agreement among free and equal people. Similarly, the ECtHR justifies its judgments through public reason,reasons that all citizens of democratic states could understand and accept. At the same time the book notes that the ECHR also reflects Kantian moral constructivism based on respect for human dignity and rational autonomy.
The book also refers to Charles Beitz and Joseph Raz, who both describe human rights as more than just moral ideas. Beitz sees human rights as practical tools for shaping how states behave in the international system while Raz argues that human rights protect important human interests and help justify limits on state power. The ECtHR shows both these ideas in practice. It protects individual dignity (a moral goal), but it also respects political pluralism and national sovereignty (a political concern). The Court’s approach can therefore be seen as Beitzian pragmatism mixed with Razian normativity reflecting a balance between morality and world politics.
One of the central issues in the book is the doctrine of democratic necessity. While the ECtHR claims that rights may only be limited when necessary in a democratic society this principle often lacks clarity and consistency. The Court’s method of balancing individual rights against collective interests can appear overly flexible, allowing political considerations to influence its judgments. As a result, the idea of necessity sometimes serves more as a tool for legitimizing state interference than as a genuine safeguard of democracy. This raises the question of whether the Court truly protects democratic values or merely adapts them to fit political convenience.
The book also connects the ECHR’s moral foundation to Europe’s historical experience with totalitarianism. After WWII the Convention was created as a direct response to authoritarian regimes
also that gives the ECHR a deep moral purpose it is not only a legal structure but also a moral promise born from Europe’s collective memory of oppression and injustice.
In the end, the book presents the ECHR as a constructivist institution that brings together moral ideals and political realities. It does not rely on absolute truths or pure politics but instead builds its authority through continuous reasoning and justification. While The ECHR and Human Rights Theory offers a strong link between moral philosophy and law, it tends to idealize the European Court of Human Rights. The book’s reliance on Rawlsian and Kantian constructivism assumes that judicial reasoning is always rational and fair, ignoring the political pressures and power dynamics that shape many ECtHR decisions. The concept of democratic necessity though appealing in theory, can justify state restrictions under the guise of democracy. By focusing on abstract justification the book overlooks inconsistencies, selective enforcement and Eurocentric biases within the Court’s practice.
Displaying 1 of 1 review