Chapter

Democracy and Participation

Andrew Legg

in The Margin of Appreciation in International Human Rights Law

Published in print July 2012 | ISBN: 9780199650453
Published online September 2012 | e-ISBN: 9780191741173 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199650453.003.0004

Series: Oxford Monographs in International Law

Democracy and Participation

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The democratic legitimacy of the state is commonly given as a factor for the margin of appreciation. This is explained by applying debates from domestic constitutional theory about the legitimacy of judicial review. This chapter seeks to develop theories of judicial review by arguing that the practice of judicial deference by courts provides a conceptual tool to mediate between values emphasised in competing theories: in different cases judges should give greater or lesser sway to the importance of democratic participation depending on the facts. A greater margin of appreciation is given where the legislature makes a choice between conflicting private rights or about public rights. There is stricter scrutiny where democracy is at risk or functions less well (e.g., for minorities, or where there has been little public debate). In making decisions about such matters the tribunals contribute to the development of democratic theory in international law.

Keywords: judicial review; participation; minority rights; rule of law; democracy; democratic theory in international law

Chapter.  17190 words. 

Subjects: Public International Law

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