Calibrating the Legal Response to Populism: Role and Limits for th European Court of Human Rights
Political scientists and theorists have in recent years delineated some constitutive traits of populism as a distinctive social and political phenomenon. Despite the context-sensitive character of its occurrences and its thin programmatic dimension, scholars are now in a better position to articulate an ideal-type of populism in how it specifically relates to – and challenges – core aspects of the regime and some of the profound aspirations of liberal democracy. Less studied, however, are the legal implications of the populist challenges to liberal democracy. It is intuitively clear that by attempting to revise the democratic demos, populism engages our basic legal and constitutional imagination. Yet, research has not yet clarified if and to what extent populism envisions and conflicts with fundamental legal norms specifically, in particular the human rights norms and institutions that permeate the domestic-European divide today. This project looks at one prominent judicial actor whose decisions governs the legal architecture of the European continent and beyond, namely the European Court of Human Rights (ECtHR). In this context, this proposal aims to evaluate if the Court should further develop the democratic rights enshrined in the European Convention on Human Rights (ECHR) with a view to strengthening both the institutional and deliberative basis of democracy within state parties – a basis that populism can potentially but profoundly erode.
