Cormac S. Mac Amhlaigh (University of Edinburgh – School of Law) has posted Political Constitutionalism and the European Court of Human Rights: An Alternative View on SSRN. Here is the abstract:
As a theory of democratic accountability, the idea of political constitutionalism relates to a perennial issue in democratic theory and theories of institutional design: the role of rights in democracy and the legitimacy of judicial enforcement of those rights. This article explores the idea of political constitutionalism with respect to the European Court of Human Rights where the arguments of political constitutionalism have been co-opted both to attack and defend the Court and its work. It focuses on one attempt to defend the ECHR system in political constitutional terms by Richard Bellamy, arguing that Bellamy’s political constitutional defence of the ECHR, centred on the issue of strong judicial review, the amendability of the Convention and its political enforcement comes at too high a cost for a meaningful concept of political constitutionalism. It offers an alternative reading of the ECHR in terms of democratic accountability based on Phillip Pettit’s republican democratic theory which helps, the paper concludes, to highlight the ways in which the ECHR can be understood to support the democratic accountability inherent in the value of political constitutionalism as a constitutional theory.