The European Court of Justice and the Challenge of Human Rights: A Case of Functional Majoritarian Activism

72 Pages Posted: 24 Apr 2012 Last revised: 9 May 2012

See all articles by Tommaso Pavone

Tommaso Pavone

Department of Political Science, University of Toronto

Date Written: May 8, 2012

Abstract

This thesis explores the challenges that the European Court of Justice (ECJ) faces as its human rights practice continues to grow, along with the ECJ’s strategy to address these difficulties. Human rights adjudication is different from the other forms of judicial review because it directly implicates conflicting normative considerations. This combines with the public salience of human rights cases to render supranational human rights adjudication a potentially controversial and politically explosive undertaking. In response, the ECJ has sought to minimize the threat of backlash to its decisions through majoritarian activism. Majoritarian activism allows the Court to reduce the appearance of supranational activism by portraying itself as merely enforcing and solidifying the status quo rather than advancing it through egotistical self- empowerment. This reduces the likelihood that domestic interest groups, activists, and private litigants interpret a decision as undermining their interests, sheltering the Court from political attacks that could harm its reputation. This minimizes the threat of ‘reverse spillover’ – that is, private litigants no longer invoking EU law and domestic courts no longer referring cases to the Court or upholding its rulings. Further, because majoritarian activism pressures minority practices to accord with those of the majority, the ECJ maintains its ability to promote European integration. In other words, majoritarian activism is functional in light of the unique sets of challenges stemming from the Court’s expanding human rights practice. Yet the normative desirability of this strategy remains questionable, and as the ECJ’s human rights practice expands, the Court will have to balance the positive functionality of majoritarian activism with the normative concerns the strategy invites.

Keywords: European Court of Justice, ECJ, human rights, fundamental rights, majoritarian activism, backlash, integration, European Union, EU, European Court of Human Rights, ECtHR, neofunctionalism, intergovernmentalism, functional

Suggested Citation

Pavone, Tommaso, The European Court of Justice and the Challenge of Human Rights: A Case of Functional Majoritarian Activism (May 8, 2012). Available at SSRN: https://ssrn.com/abstract=2045841 or http://dx.doi.org/10.2139/ssrn.2045841

Tommaso Pavone (Contact Author)

Department of Political Science, University of Toronto ( email )

105 St George Street
Toronto, Ontario M5S 3G8
Canada

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