When the European Court of Human Rights speaks, What Should It Say?
Article by Alain Zysset in Philosophy and Public Issues - Illeberal Views in Liberal States
In When the State speaks, What Should It Say?, Corey Brettschneider aims to resolve the dilemma opposing two conceptions of the role of the liberal and democratic state in addressing hateful and/or discriminatory beliefs and practices: the Invasive State, on the one hand, and the Hateful Society, on the other. At one extreme, the Invasive State coerces its subjects by prohibiting the expression of certain discriminatory viewpoints that are inconsistent with the ideal of free and equal citizenship. ‘Prohibitionists’ would therefore use coercion to promote democratic values and thereby ‘promote equality as its expense.’1 In the Hateful Society, in contrast, ‘neutralists’ protect the expression of all opinions and may leave deeply discriminatory beliefs and practices ‘thrive in a culture of rights’2 and thereby make the state complicit in those beliefs and practices.
Faced with such dilemma, Brettschneider defends an alternative model, ‘value democracy’, which aims to avoid the ‘dystopias’ of coercion or neutrality. Rather than attempting to change beliefs and practices by coercing individuals, the state and the citizenry should engage in ‘democratic persuasion’ by criticizing discriminatory beliefs and practices and persuade them to adopt the founding values of freedom and equality. The state’s duty of democratic persuasion does not face the justificatory burden of both the ‘prohibitionists’ and the ‘neutralists’ because it is met by the expressive and not coercive capacities of the state. Democratic persuasion has the advantage that the state and the citizenry actively and publicly defend the ‘reasons for rights’ (free and equal citizenship) without limiting those rights.
In this article, I aim to test Brettschneider’s value democracy at the supranational level. To specify what I mean by ‘supranational’, it is necessary to concentrate on one central state actor bearing the duty of democratic persuasion, namely courts.