Towards a Normative Theory of the European Convention on Human Rights: The Potential of Neo-Republican Principles
Despite their diversity, current human rights theories tend to share an under-noticed commonality: they seem locked in a descriptive and normative perspective that is global in reach and scope. The interpretive material – the ‘inputs’ from which final normative principles are issued – is usually composed either of the lists of rights enshrined in universal declarations and covenants – for the so-called ethical conception – or from a substantive view of the current global political order and the normative practices of human rights associated with it – for the so-called political conception. This globalizing perspective neglects other spheres of political and legal activity associated with human rights. The European Convention on Human Rights (ECHR) and the European Court of Human Rights in Strasbourg (ECtHR) is a case in point and has not yet been addressed by political philosophers. By contrast to the globalizing perspective, this institutional context provides us with a significantly different material of construction – especially legal – for the normative theorist: its legal structure embedded in national constitutions, its huge amount of case law as well as its inherent relationship with the Council of Europe. This contribution aims at suggesting a tentative account to fill out this gap in addressing both the practice (legal, institutional) and the moral, normative foundations of this highly developed institutional system. More precisely, an informed analysis of the ECHR system suggests that it might be attractive to employ the recent theoretical developments of neo-republicanism and its core principles as heuristic variables to conceive the normative ideal of human rights as applied to the ECHR system.