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5.1 Authority-based legitimacy

The traditional understanding of legitimacy, owed largely to the work of Joseph Raz,67 is to contrast it with the idea of justice or correctness. To ask whether someone has legitimate authority over you is to ask whether his decisions bind you irrespective of merit, regardless, that is, of whether they are just; correct; right.68 The reason for this understanding draws on the role that authorities are meant to play in our lives: if we were to be bound by authorities only when they make just decisions, then they would make no practical difference in our lives. Each one of us would have to figure out what reasons apply to him independently of the authority’s decision, and follow the decision only when it matches what one ought to do anyway, according to the balance of reasons. Doing so, however, would make authorities redundant. And authorities are meant to play a practical role in our lives by guiding our action and by imposing obligations. But how can they play that role if we are to follow them only when they are right? And how can they impose obligations when, from a moral point of view, their decisions may not be correct?

Raz’s answer to this is that authorities are meant to provide us with a service, namely, to help us comply with reasons we already have. As he puts it, authorities ‘mediate between people and the right reasons that apply to them’.69 According to what he calls the ‘normal justification thesis’, an authority is legitimate when the alleged subject is likely better to comply with reasons which apply to him if he accepts the directives and tries to follow them than by trying to follow the reasons that apply to him directly. One has a duty to follow someone’s directives, even if some of them are incorrect or unjustified, if, on the whole, one increases conformity with right reason by doing so. Raz’s normal justification thesis is typically met in two cases. First, when the authority has greater expertise than its subjects in the domain to which its decisions pertain. Second, when the authority can solve coordination problems, for instance, by making one course of action – amongst many alternatives – salient.

67J. Raz, The Morality of Freedom (Oxford University Press, 1986); see also Raz’s more recent restatement, in J. Raz, ‘The Problem of Authority: Revisiting the Service Conception’, Minnesota Law Review 90 (2006) 1003–44.

68It should be stressed that the question here is not that of perceived or de facto legitimacy, i.e. whether one believes that some authority is legitimate. The question is a normative one, namely, what would make that belief true, i.e. what reasons in fact one has to obey an authority.

69J. Raz, Ethics in the Public Domain (Oxford: Clarendon Press, 1995), at 214.

Raz attaches several conditions and qualifications to the normal justi- fication thesis. The first is what we might call the ‘autonomy constraint’. Authorities are not legitimate in relation to matters that individuals should decide themselves. For example, personal aspects of one’s life, such as what friends or sexual partners to have, are things that each one of us should reflect on and act autonomously due to the nature of the value that they promote. Even if one would choose better friends by following someone else’s directives than by relying on one’s own judgment, doing so would defeat the whole point of the value of friendship, because part of that value consists in making one’s own choices. The scope of legitimate authority is limited by the autonomy interests of the subjects. Likewise, in the case of international institutions, their authority could plausibly be limited by certain sovereignty interests of state parties.

The second condition relates to manifestly unjust decisions. An outrageously unjust decision, issued by an otherwise legitimate authority, would not obligate its subjects. This is a second way in which legitimate authority is limited. Obeying authorities is meant to be a rational way to improve compliance with one’s reasons and duties. When it is manifestly obvious that the authority’s directive is unjust or evil, then the subject should ignore it, even if the rest of its directives help him on the whole to do what is right.

Third, not everyone whose directives, if followed, would help me comply with my reasons, is a legitimate authority for me. There are many people out there who know more about finances than I do, but this does not make them legitimate authorities over my financial decisions. Such people are merely theoretical authorities. The legitimacy of an authority may depend on whether it is also a practical authority, i.e. on whether its decisions are in fact followed by its subjects, or on whether it has the ability to enforce them. This is particularly the case in coordination issues: arguably, there are institutions or persons (e.g. the International Monetary Fund or the World Bank) who can coordinate the economic activities of EU member states better than the EU institutions. The reason why they do not possess legitimate authority is that the directives of such institutions, unlike those of the EU institutions, are not treated as authoritative by the EU member states. The idea here is that only de facto authorities, i.e. authorities that are generally obeyed, are candidates for possessing legitimate authority to solve coordination issues.

Finally, legitimate authority can be piecemeal: someone can be a legitimate authority for you, but not for me. When one’s legitimate authority is based on expertise, then it can only be possessed over people

who know less than the authority on the subject-matter in question. For example, if you know less than the government on medicinal matters, then you have reason to follow the government’s health directive mandating a flu vaccine. But if you are a medical expert on flu and know more about it than the Ministry of Health, then the government possess no legitimate authority over you in relation to vaccines.

Now, if this is what we mean by legitimacy, then it is doubtful whether Strasbourg possesses it. The relevant test would be whether each and every contracting state is more likely to comply with their human rights obligations by following Strasbourg’s directives than by trying to comply with these obligations directly. The next section raises doubts about whether Strasbourg can meet this test.

5.1.1 Expertise-based legitimacy

Take first the argument from expertise, which is one of the grounds of legitimacy according to the Razian conception. It is doubtful whether Strasbourg judges possess greater expertise about human rights than all or most national institutions, including national constitutional courts with powers of judicial review. Strasbourg surely does not have greater expertise in empirical matters within the contracting states. As Strasbourg itself acknowledges, national authorities are often ‘better placed’ to establish a number of facts pertaining either to the applicant’s situation or to general conditions existing in the respondent states (e.g. what its ‘public morals’ are).70 Moreover, it is doubtful whether

70 See ECtHR, Handyside v. United Kingdom (Appl. No. 5493/72), Judgment (Plenary), 7 December 1976, Series A, Vol. 24, para. 59; ECtHR, Ireland v. United Kingdom (Appl. No. 5310/71), Judgment (Plenary), 18 January 1978, Series A, Vol. 25, para. 207; ECtHR, Aksoy v. Turkey (Appl. No. 21987/93) Judgment (Chamber), 18 December 1996, Reports 1996-VI, para. 68; ECtHR, Demir and Others v. Turkey (Appl. Nos. 21380, 21381 and 21383/93) Judgment (Chamber), 23 September 1998, Reports 1998-VI, para. 43; ECtHR, James and Others v. United Kingdom (Appl. No. 8793/79) Judgment (Plenary), 21 February 1986, Series A, Vol. 98, para. 46; ECtHR, Lithgow v. United Kingdom (Appl. Nos. 9006/80; 9262, 9263, 9265, 9266, 9313 and 9405/81), Judgment (Plenary), 8 July 1986, Series A, Vol. 102, para. 122; ECtHR, Former King of Greece v. Greece, supra note 20, para. 87; ECtHR, Pincova and Pinc v. Czech Republic (Appl. No. 36548/97) Judgment (Second Section), 5 November 2002, Reports 2002-VIII, at para. 47; ECtHR, Brannigan and McBride v. United Kingdom (Appl. Nos. 14553 and 14554/89) Judgment (Plenary), 26 May 1993, Series A, Vol. 258-B, para. 43; Gasus Dosierund Fordertechnik GmbH v. The Netherlands, supra note 20, para. 60; ECtHR, Malama v. Greece (Appl. No. 43622/98) Judgment (Second Section), 1 March 2001, Reports 2001-II, para. 46; ECtHR, Jokela v. Finland (Appl. No. 28856/95) Judgment (Fourth Section), 21 May 2002, Reports 2002-IV, para. 52; ECtHR, Jahn v. Germany (Appl. Nos. 46720/99; 72203 and 72552/01) Judgment

Strasbourg judges have greater moral expertise than domestic institutions on what human rights we have. Though the quality of Strasbourg’s judgments is by no means poor and has improved significantly, there are many reasons to be sceptical that its expertise on human rights is greater than that of many national constitutional courts. First, the Court is relatively new, established as a direct, full-time Court in 1998 with the reform of Protocol 11. Some contracting states have constitutional courts and constitutional rights jurisprudence that are many decades older than Strasbourg’s, serving as the repository of accumulated wisdom about rights.

Second, the Court’s jurisdiction is based on ‘individual justice’, having a duty to examine the merits of each and every complaint that meets the requirements of admissibility. As a result, it is overburdened with applications, having less time to consider important matters of human rights principle than domestic courts operating under a more selective, certiorari jurisdiction. There are domestic courts, like the UK Supreme Court or the German Constitutional Court, whose judicial reasoning is on average less formulaic and legalistic than Strasbourg’s, making for a more substantive engagement with human rights issues.

Third, the procedure for appointing Strasbourg judges, though more transparent and democratic than in other international institutions, is still not as rigorous as it could be. The Parliamentary Assembly of the Council of Europe elects out of a list of three candidates nominated by the government of each contracting state, in ranked order. The Assembly has the right to elect the government’s second or third candidate and to refuse to accept the candidate list for want of gender balance or proper qualifications, and it has done so on occasion. In practice, the government’s first choice is elected in the majority of appointments.71 Governments, however, are not really scrutinised domestically for their choice of candidates, and there is in general little publicity surrounding the nomination and appointment process. Hence, there is greater risk that considerations other than merit and expertise might influence who gets appointed to Strasbourg, compared

(Third Section), 22 January 2004, not reported, para. 80; ECtHR, Gillow v. United Kingdom (Appl. No. 9063/80) Judgment (Chamber), 24 November 1986, Series A, Vol. 109, para. 56; ECtHR, Buckley v. United Kingdom (Appl. No. 20348/92) Judgment (Chamber), 25 September 1996, Reports 1996-IV, para. 75.

71For further discussion and analysis of the selection process, see Lambert-Abdelgawad, Chapter 7, this volume.

to procedures for appointing national judges that involve more checks and balances and attract greater publicity.72

Fourth, many of the new member states that joined following the collapse of Communism emerge from legal structures that have paid lip-service to the values of human rights, democracy and the rule of law.73 It is more likely that the judges coming from these states will have little expertise in what these values practically entail, compared to judges trained within states whose legal systems have internalised and realised these values for a longer period. That is not to say that judges from these new member states will more often than not reach the wrong result.74 The point is that, given that there is a wide spectrum of rights expertise within the Council of Europe, it will always be questionable why states with greater expertise should obey a court composed of judges the majority of whom come from states with lesser expertise.

The above four reasons suffice to show that it is doubtful that Strasbourg judges have better moral expertise on human rights than all national authorities.75 And if such expertise is essential for engaging in the method I called the moral reading of the Convention, then it would count against this method that it is unlikely to confer legitimacy on the Court’s judgments. The Court would have no reason to employ a method that could not confer on it legitimacy over states with higher expertise on rights issues. And it would be open to criticism by states with greater

72See the extensive criticism of the European Court by Lord Hoffman in his ‘The Universality of Human Rights’, Judicial Studies Board Annual Lecture (2009), available at: www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/Hoffmann_2009_JSB_Annual_ Lecture_Universality_of_Human_Rights.pdf (hereinafter Hoffman, ‘The Universality of Human Rights’).

73See the discussion in Cameron, Chapter 2, this volume.

74An assessment of how competent the ECtHR judges from the new member states are is not a purely empirical exercise, because it would require a normative view about what the correct outcome is in each and every case that they have decided. It is a mistake to think that whether a human rights judge is impartial or an activist depends on whether he decides against or in favour of the government, because either decision may, from a normative point of view, be correct. So purely quantitative analyses of how individual judges vote cannot make out a case of greater or lesser expertise on human rights issues. For an example of such an analysis, see E. Voeten, ‘The Impartiality of International Judges: Evidence from the European Court of Human Rights’, American Political Science Review 102:4 (2008) 417–33.

75The comparison I have made so far has been between Strasbourg and national courts. It is equally, if not more doubtful, that Strasbourg possesses greater expertise on human rights than non-judicial national institutions, such as legislatures.

expertise on human rights for doing so.76 At best, the claim that Strasbourg possesses expertise-based legitimate authority would apply mainly to states with worse than average human rights records. Expertise-based arguments would have great difficulty establishing that states with the best human rights records in Europe and a long history of rights-based constitutionalism will respect human rights better by following Strasbourg than by relying on their own judgment.

The likely result of expertise-based argument is a piecemeal picture of Strasbourg’s legitimate authority: states with poor human rights records are bound by Strasbourg because they will do a better job at complying with their obligations by following the Court than by relying on their own judgment. States with a strong human rights culture, on the other hand, are free to ignore the Court, much like the medical expert who is free to ignore the government’s directives on flu vaccines. And the piecemeal picture of Strasbourg’s legitimacy would justify the stance of some national authorities, like that of the UK Parliament,77 to refuse to comply with a Strasbourg judgment that they think is a mistake.

Note, finally, that in striving to maintain expertise-based legitimacy over contracting states with less than average human rights records, the moral reading of the Convention might be a sub-optimal interpretive method. Recall that the moral reading asks the judge to interpret the Convention according to what he takes to be the best understanding of the moral values that underlie human rights. In doing so, he should not be constrained by what is most states’ understanding of those values. But if Strasbourg’s main authoritative role is to help states with the weakest human rights record in Europe, then it would be better to interpret the Convention according to what states with a strong human rights record do than to try to develop its own vision of human rights. For by taking the protection offered by states with strong human rights records as a yardstick, the Court would be guaranteed to provide weak states with good guidance on human rights issues and to help them reduce violations. By contrast, the moral reading of the Convention will often result

76 Indeed, that is exactly the spirit of Lord Hoffman’s critique: ‘It is therefore hardly surprising that to the people of the United Kingdom, this judicial body does not enjoy the constitutional legitimacy which the people of the United States accord to their Supreme Court’, Hoffman, ‘The Universality of Human Rights’, at 23. Hoffman is also, of course, very critical of the Court’s use of evolutive interpretation.

77 In February 2011, Members of Parliament backed a backbench cross-party motion supporting the blanket ban by a vote of 234 to 22. See www.guardian.co.uk/politics/ 2011/feb/10/mps-blanket-ban-prisoners-vote.

in challenging policies taken by strong states and, hence, risks settling on a scheme of rights that offers weaker protection.

5.1.2 Coordination-based legitimate authority

Alternatively, it could be suggested that the Court is in a position to solve some coordination problems that contracting states face, and that its legitimacy stems from this position. Consider the analogy with driving: we want to be able to drive safely and enjoy the goods of transportation, but this is possible only if we all drive on the same side of the road. As far as safety is concerned, it does not matter at all which side we drive on (left or right), what matters is that we all take the same side. However, if either option were open to each one of us, then safe driving would become impossible: we would know that we have to drive on the same side of the road as everybody else, but we would not know what side others will choose to drive on. The government solves this problem by directing us, through traffic codes and legislation, to drive on one of the two sides of the road (left in the UK, right in Continental Europe). The government has the ability to make one of the two alternatives salient in virtue of the fact that it is a de facto authority: drivers follow its directives and drive on the side that the government directed. Hence, the legitimate authority of government to direct our driving, the reason why we have a duty to follow traffic rules, need not have anything to do with its expertise on traffic matters. For there is no expert knowledge on whether it is better to drive on the left or on the right – either is permissible, before any practice of driving gets off the ground. The government’s legitimate authority here depends partly on its ability to make a course of action salient and partly on the fact that an important good is promoted when everybody follows the same (permissible) course of action.

It is difficult to see what coordination problem the Court is there to solve. It is true that it possesses de facto authority, in that its judgments are generally complied with by the contracting states. However, unlike cases of coordination, human rights norms are meant to identify courses of governmental action that are impermissible. The Court is meant to identify what states ought not to do to people within their jurisdiction. And unlike cases of coordination, the ability of each contracting state to comply with their human rights obligations does not depend on whether other states comply with theirs. It is not that by ruling something to be a violation of human rights (say, a blanket ban on prisoners’ voting) the Court makes salient one amongst many possible alternative ways in

which states can promote some common good. The ruling of a human rights violation is meant to identify a wrong done to an individual, a wrong whose existence does not depend on what other states do.

Now, it could be argued that there is a mutual benefit whose promotion does depend on all contracting states following the Court’s directives. Consider the claim that states with a poor human rights record will have no incentive to reduce human rights violations unless they are parties to the same binding mechanisms as states with a strong human rights record. It could then be argued that it is only if all states obey the Court that the protection of human rights in Europe will improve. If strong states ignore the Court’s judgments, then they will not be in a position to criticise weak states that do the same and to put pressure on them to comply with their human rights obligations. This argument links up with the idea of piecemeal authority discussed above. We saw that the Court’s expertise can provide a unique service to contracting states with poor human rights records, helping them to comply with their human rights obligations, but little or no service to other states. This would entail that the Court has legitimate authority over some states, but not others. If, however, states with a strong human rights record also have reasons to ensure that the not-so-good states improve their human rights record, and the way to do this is by obeying some supranational institution (albeit of lesser expertise), then the Court can come to possess legitimate authority over all contracting states. It would have legitimate authority over weak states because it can directly help them comply with their human rights obligation, and it would have legitimate authority over strong states because, by doing what it says, they comply with the reason they have to prevent human rights violations in weaker states.

This argument is familiar from debates about European politics. It is often argued, for instance, that it better serves the interests of Western European states (like the UK or France) if emerging European democracies (like Russia and Turkey) are parties to the ECHR rather than outside it. Empirical evidence suggests that states’ human rights records improve by joining an international human rights treaty78 and that stable democracies do not go to war with each other.79 By giving up a little bit of sovereignty to supranational human rights institutions, Western states

78See B. Simmons, Mobilizing for Human Rights: International Law in Domestic Politics

(Cambridge University Press, 2009) chapters 5–8.

79On the so-called ‘democratic peace theory’, see M. Doyle, ‘Kant, Liberal Legacies and Foreign Affairs’, Philosophy and Public Affairs 12 (1983) 205–23.

gain long-term benefits in peace and stability. Indeed, the entire postWorld War II process of European integration started as a means to prevent another costly and catastrophic war.

But there are reasons to doubt the soundness of the above argument. We could first question the claim that emerging democracies will not be motivated to improve their human rights record unless they are parties to the same binding mechanisms as states with a strong human rights record. This is, of course, an empirical question of political science, and I do not claim to have an answer. The more important objection relates to whether states have a responsibility to do something to reduce the human rights violations occurring in other states. Suppose we grant that obeying the Court is the only way for European states to help improve, in the long run, the human rights record of Russia or Ukraine. Why is the UK or Germany responsible for improving the human rights record of Russia or Ukraine? Why is it part of their responsibility, given that doing so involves the significant cost of giving up part of their sovereignty and obeying an institution of lesser expertise on human rights issues?

A moral reason, let alone a duty, to ensure that other states improve their human rights records would be unduly burdensome on states. The analogy with interpersonal morality is, I think, apt here: individuals do not normally have a duty to ensure that others comply with the moral reasons that apply to them. For example, I do not normally have a reason to make sure that people with whom I have no connection do not abuse their children. Likewise, states are not normally morally responsible for the human rights violations occurring in other states, nor do they have a moral reason to prevent them, save in exceptional circumstances like genocide.

At best, states would have a prudential reason to do so, stemming from their own self-interest: by helping improve the human rights record of weaker states, strong states can protect their own security and economic interests, by reducing the risk that weak states will become aggressive or economically unstable. Prudential reasons, however, will be insufficient to confer legitimacy on the Court over all 47 contracting states. The current risk to security or economic interest posed to several old democracies of Europe is not substantial enough to justify such a strong limit on their sovereignty, particularly when some of the ECHR states are so remote geographically (e.g. Georgia and Azerbaijan). The result would again most likely be one of piecemeal legitimacy: several states would have a weighty reason to obey the Court’s judgments because they have prudential reasons to prevent neighbouring states with a poor human rights record from escalating into rogue states. But not all contracting states would have such reasons.

5.2Commitment-based legitimacy

For authority-based arguments, as I have described them, it makes no difference whether we are asking why states should obey the Court’s judgments, or whether we are asking why have the ECHR or the Council of Europe in the first place. This is because the authority-based legitimacy of the Court does not depend on whether states have a legal obligation to abide by the Court’s judgments. Authority-based views treat the existence of the Court’s judgments as a mere claim that the Court be obeyed and then they ask what moral reason there could be for obeying it. According to such views, the idea that states are legally bound by the ECHR, which includes the legal duty under article 46 ECHR to abide by the decisions of the Court, is not meant to play any role in grounding the legitimacy of the Court. If it has no greater expertise in human rights issues than contracting states and is not solving some coordination issue, then it has no legitimate authority over them.

By contrast, commitment-based arguments for legitimacy treat the fact that states made a voluntary undertaking to be bound by the ECHR, as well as the subsequent practice of honouring that undertaking, as morally relevant. The morality of promises or agreement, encapsulated in the principle pacta sunt servanda, here plays a crucial role: just like individuals, states are agents whose will and practice matters in relation to the obligations they have. For example, the promise to my neighbours that I will abide by a joint scheme of recycling, as well as the subsequent compliance with that scheme by everyone, generate reciprocal moral obligations to respect it. It does so, even if the scheme established is sub-optimal in serving the relevant goal and even if some parties to the joint scheme would be in a position to act optimally (e.g. recycle more) were they to violate the scheme.80 It is important to highlight here that the duty to keep one’s promise is by and large independent from whether one had, absent the promise, a duty to do what one promised. For example, my duty to meet you for lunch tomorrow, as I promised, does not depend on whether I had a reason to meet you for lunch or to promise to do so. Likewise, states’ duty to respect the judgments of a treaty-based, collective mechanism for enforcing human

80A number of moral principles to do with fairness, legitimate expectations and reliance account for the obligations that arise out of collective institutional action. I cannot here elaborate on the precise shape of the moral principles that make past institutional practice relevant.