Emotional Politics and the 'Militant Turn' of the European Court of Human Rights. Assessing Democratic Transitions Through the Case of Party Bans: The Refah Partisi

In this article, Postdoctoral Fellow Claudio Corradetti assesses the relation between Democracy and human rights in situations of democratic transitions. Read the full paper (SSRN).

In this paper, Corradetti adopts a notion of “democratic transitions” (post-war transitional justice regime shifts, intrademocratic transitions) and argues that these reveal a paradoxical relation, not one of Habermasian co-originality, between democracy and human rights. He maintains that this relation appears to hold both in cases of “normal” contexts of democratic redefinition of the scope and content of fundamental rights, as well as in the case of transitional non-ideal scenarios. This essay will address only this second aspect. Also as an illustration, he considers the “militant” turn of the European Court of Human Rights (ECtHR), and in particular the adoption of the standard of proportionality in cases of party-dissolutions and particularly in the Refah Partisi Case. 

Corradetti's objective is double. On the one hand, he evaluates how the paradox between human rights and democracy is normatively required in the adjudication of transitional contexts; on the other hand, he shows how some of the ECtHR deployments of the proportionality standard are problematic when constraining democracy excessively. This suggests that the Court requires adopting a more standardized pattern of reasoning when applying a proportionality test in contexts of democratic transition.

Tags: Human Rights, Legitimacy
Published Dec. 14, 2015 1:26 PM - Last modified Sep. 1, 2016 2:59 PM