In this article, I argue against the claim that the practice of the European Court of Human Rights cannot be reconciled with the democratic-procedural standards by which state parties, in accordance with the principle of subsidiarity, decide about the content and scope of human rights norms. First, I suggest drawing the attention to the neglected balancing exercise of the review process, in which the Court has to determine whether a violation is nevertheless ‘necessary in a democratic society’. Second, I shed light on the role that ‘pluralism’ plays in the balancing (with particular emphasis on Articles 8–11). Third, I argue that Thomas Christiano’s egalitarian argument for democracy can best illuminate the Court’s reliance on pluralism.

This article argues that a distinction between the public and the private is both desirable and feasible in times of global governance, at least as a regulative idea. The confusion surrounding this distinction originates in different understandings of the relationship between state and society in liberalism and republicanism. Discourse theory with its idea of the co-origin of democracy and human rights reconceptualises the relationship between state and society in a way that does justice to both liberal and republican approaches. Accordingly, the public/private distinction is crucial for the realisation of democracy and freedom. Classifying an act as public or private determines what kind of legitimacy it requires. The article then recalibrates discourse theory to face the challenges of global governance, shifting its focus from hard law to a broader notion of authority, and from the state to a pluralistic, cosmopolitan world order composed of multiple overlapping communities. A community is characterised by communicative action and a common identity. In such a setting, public authority is the authority exercised on behalf of a community in relation to its members. In relation to non-members, the same act may constitute an exercise of private authority. It is a different question whether such authority is legitimate. Some examples illustrate the approach.

The judicial use of foreign law in constitutional cases is often unsatisfactorily explained in terms of persuasive authority, judicial learning or judicial dialogue. In this article, I argue that the central case of the judicial use of foreign law involves judges treating foreign case law as theoretically, rather than practically, authoritative. The justification for this approach lies in how case law emerges from a process that is structured in such a way that its outcomes deserve respect. There is, in contrast, no justification for any attempt on the part of judges to treat constitutional cases as an opportunity for interjurisdictional judicial dialogue.

This article examines the contemporary debate about the spread of transnational law and its sovereigntist critiques. Sovereigntists argue that the rapid development of international and transnational treaties and the emergence of regional human rights courts such as the European Court of Human Rights (ECtHR) undermine sovereignty and thus pose a threat to democratic self-determination. I criticise the new sovereigntism and argue that transnational human rights strengthen rather than weaken democratic sovereignty, and name processes through which rights-norms are contextualised in polities ‘democratic iterations’. I develop the ‘authorship model of democratic legitimacy’ in order to show how constitutional rights and international human rights can be understood to be in harmony and dissonance with one another. The challenge is to think beyond the binarisms of the cosmopolitan versus the civic republican; democratic versus the international and transnational; democratic sovereignty versus human rights law. Distinguishing between state sovereignty and popular sovereignty enables us to do so. By constraining certain sovereign powers of the state, international human rights regimes and courts can enhance popular sovereignty in that they strengthen the rights of the marginalised and the excluded. The article also briefly touches upon the significance of the Alien Tort Statute in US courts from the standpoint of the development of international human rights norms and focuses on Hirst v the United Kingdom, recently adjudicated by the ECtHR, to substantiate the distinction between state and popular sovereignty.