II. Reconstructing the Court’s ‘democratic society’

The first premise to my argument is the governing role that the notion of ‘democratic society’ plays in the Court’s ad hoc resolution of cases. It is therefore necessary to carefully locate, in descriptive terms, where the notion operates in the formal structure of the review. When the Court reviews whether a piece of domestic legislation conforms to the Convention, it can find an interference with one or more rights only on the basis of the facts of the case presented by the applicant and examined in light of a set of established interpretive principles. Yet the interference does not amount to a violation if the respondent state party can justify its interference via the restriction clauses, which are almost identical for all the qualified rights (Articles 8–11) of the Convention (‘publicity’, ‘legitimate aim’, ‘democratic necessity’). The Court thereby switches the burden of proof to the state party. As Gerards and Senden explain, ‘a definitive conclusion about the alleged violation can be reached only when the soundness of the justification adduced by the government has been scrutinized’.^{Footnote 21}

It is widely agreed that the Court has spilled much more ink on this last step (‘democratic necessity’) than on the two others (‘accessibility of the law’^{Footnote 22} and ‘legitimate aim’^{Footnote 23}) and sometimes even conflates the first two with the third. While ‘legitimate aim’ is treated by the Court as an exercise of classification without much discussion, it takes ‘necessary in a democratic society’ as forming the central step of the test. As Arai-Takahashi confirms, ‘the Strasbourg organ may prefer to focus their scrutiny on the third standard, finding it unnecessary to ascertain compliance with the first and second standard’.^{Footnote 24} It goes without saying that the formulation is ambiguous: not only is ‘democratic society’ undefined in the Convention, but it is also silent on which normative standards make the violation necessary (the standards of proportionality stricto sensu) in that society. In fact, rather than directly specifying what those standards are, the Court has engaged in defining what it takes to be the essential conditions of a ‘democratic society’ and then has articulated how each of the qualified rights (the interest(s) they protect, the duties and duty-bearers they entail) serves that society. Consequently, the interpretation of this notion is another occasion – in addition to the interpretation of the rights’ wording – to specify what those rights ultimately are about, and more importantly, how each specifically relates to democracy.

Most importantly, the Court binds ‘democratic society’ to a normative notion of pluralism. While pluralism certainly does not exhaust ‘democratic society’ in the Court’s eyes, it is often located at the end of the Court’s justificatory sequence when it favours the right(s) over the respondent state party. This is particularly the case of the right to freedom of expression (Article 10). The Court long ago established the inherent link between expression and democracy. In the seminal Handyside v United Kingdom, which pertained to the publication of the Little Red School Book (encouraging young people to reflect on societal norms including sex and drugs), the Court held that ‘freedom of expression constitutes one of the essential foundations of such a society, one of the basic conditions for its progress and for the development of every man’.^{Footnote 25} Yet the Court has not subsequently specified how expressing a view in public furthers self-development. Rather, it has emphasised how the expression of pluralistic views benefits a democratic society as a whole. Since the same Handyside v United Kingdom, the Court routinely relies on the Preamble’s widely cited passage that ‘such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”’^{Footnote 26} to support this emphasis.

It must be clear that the Court’s emphasis on pluralism goes well beyond a mere factual recognition of diversity and disagreement in public debate: the Court firmly holds that pluralism serves ‘democratic society’. This is seen in how pluralism generates a salient positive duty requiring states to guarantee access ‘not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population.^{Footnote 27} This sentence has become the Court’s lingua franca on freedom of expression when it justifies the place of extremist political views, insults to heads of states, satire or just exaggeration in public debate. The thought is that the Court does not just allow individuals to make their claim in the public arena, however ‘unpalatable’ they are. It also suggests that pluralism and contradiction are necessary to a ‘democratic society’ and thereby should govern the scope of freedom of expression. Let us take the case of extremist political views. In Gündüz v Turkey, which concerned the leader of an Islamic sect defending sharia law on an independent Turkish television channel, the Court famously held that while sharia law is incompatible with a democratic society (it ‘clearly diverged from Convention values’^{Footnote 28}), publicly defending its implementation cannot be subject to restriction under the ‘democratic necessity’ clause. The standard against which the case is measured, which in turn determines the margin of appreciation, is precisely whether the views expressed by the claimant were counterbalanced in the public arena:

As in the case of separatist views,^{Footnote 30} the Court suggests that the most divisive views ought to be equally entitled to be expressed within an ongoing public debate and counterbalanced with contradictory views. The same is true, for instance, in Lehideux and Isorni v France, which pertained to the publication of a press article depicting the career of Marshal Pétain in a positive fashion and that the French courts condemned. However, the Court found a violation of Article 10 arguing that ‘that forms part of the efforts that every country must make to debate its own history openly and dispassionately’.^{Footnote 31} Several questions emerge from this reading of the Court’s reasoning: is pluralism compelling because it allows individuals to find some form of consensus on issues on which they initially disagreed? Or is pluralism desirable because it allows publicly held views to go through the Millian process of ‘trial and error’ in the search for improved beliefs? I address those issues in the next section of the article.

More importantly at this point: does the Court’s attachment to pluralism apply to all views held in public? The Court faces this question, for instance, when it balances freedom of expression against the right to reputation under Article 8 (privacy). In the recent Von Hannover v Germany, which concerned the publication of the pictures of the private life of Princess Caroline of Monaco, the Court made explicit that pluralism is particularly important when a public interest is at stake. If that interest is not found, state parties enjoy a margin of appreciation. The Court circumscribes the domain of ‘public interest’ very clearly:

The suggestion here is that the margin of appreciation correlates to the degree to which some publicly held view contributes to an ongoing, plural and adversarial debate of public interest. When it applies the ‘democratic necessity’ clause, the Court systematically conducts such an assessment. In the recent case of Otegi Mondragon v Spain, in which the applicant heavily criticised the institution of the Spanish monarchy, the Court confirmed that ‘there is little scope under Article 10 § 2 for restrictions on freedom of expression in the area of political speech or debate – where freedom of expression is of the utmost importance – or in matters of public interest’.^{Footnote 33} Most recently, in Pentikäinen v Finland, which pertained to the arrest of a photographer in demonstrations surrounding an Asia–Europe Meeting in Helsinki, the Court judged the facts against the same standard: ‘the Court considers that the demonstration was a matter of legitimate public interest, having regard in particular to its nature. From the point of view of the general public’s right to receive information about matters of public interest, and thus from the standpoint of the press, there were justified grounds for reporting the event to the public.’^{Footnote 34}

The Court’s emphasis on pluralism culminates in the formal recognition that the larger public has a ‘right to be informed’ on issues of public interest. The right to be informed is clearly not confined to just hearing about a recent public issue. Here again, the Court suggests that ‘democratic society’ requires people to receive plural and contradictory perspectives on those issues. This right was initially claimed in Erdoğdu and İnce v Turkey, which pertained to the interview of a sociologist on the conflict in Kurdistan; the Court held that ‘domestic authorities in the instant case failed to have sufficient regard to the public’s right to be informed of a different perspective on the situation in south-east Turkey, irrespective of how unpalatable that perspective may be for them’.^{Footnote 35} A recent instance of this reasoning is found in Çamyar and Berktaş v Turkey, where the Court examined the content of a book that severely criticises the Turkish penitentiary system.^{Footnote 36} Now, despite those notable efforts in conceptual exploration, the Court has not precisely explained why pluralism matters in a democracy. While holding normative statements about the proper nature of a ‘democratic society’, the Court has not established what exactly justifies the broad range of duties or why those duties outweigh other rights and duties protected by the Convention in case of conflict. This is where, I believe, one needs to engage with normative democratic theory.

III. Pluralism in the egalitarian argument for democracy

Having delineated the contours of the Court’s ‘democratic society’ and the prominent role of pluralism in substantively defining that society, the second step of my argument is to make normative sense of this predominant reasoning through normative democratic theory and more specifically the egalitarian argument for democracy. The limited scope of the article does not allow me to retrieve all the steps of this argument, of course. I rather want to focus on the crucial role that pluralism plays in it, and how it can illuminate the Court’s specification of its ‘democratic society’ delineated above. Indeed, egalitarian democrats not only assume that there are deep conflicts that exist about how to define the terms of association in a political community. They also argue that democracy can best advance the equality of subjects in the making of those terms. As Christiano puts it, ‘democratic decision-making is the unique way to publicly embody equality in collective decision-making under the circumstances of pervasive conscientious disagreement in which we find ourselves’.^{Footnote 37}

In his path-breaking book, Thomas Christiano firmly insists on the facts of diversity, disagreement, cognitive bias and fallibility as pervading collective deliberations on issues of public interest. Those facts constitute a serious challenge to the realisation of political equality. The effect of cognitive bias, for instance, is that a person’s ‘ideas about the good life and even justice tend to reflect her own background, distinctive experiences, and talents’.^{Footnote 38} The risk is that this person’s judgment about the common good unilaterally applied to all is likely to fail to take into account the interests of others. Further, egalitarian democrats assume that such conflicts cannot be solved by rational persuasion on terms that will be acceptable to all, which marks the distinction with a range of views in deliberative democracy attached to reaching an overlapping consensus or a compromise. For Christiano, in contrast, the cost of attempting to find consensus or a compromise may be too high and unequally distributed among deliberators.^{Footnote 39}

Of course, the egalitarian justification of democracy cannot just rely on factual considerations pertaining to pluralism and disagreement in collective deliberation. Any account of democracy relies on a deontological premise about the fundamental equality of individuals. Christiano, for instance, relies on a concept of persons as ‘authorities in the domain of values’ to express that concern.^{Footnote 40} However, which rights should be exercised to foster this basic equality in practice, and to what extent, is highly contentious. In contrast to other accounts, the egalitarian argument attempts to answer those vexing questions – including by suggesting how to resolve conflicts of rights – in a way that maximises the equal advancement of individual interests. As Christiano explains, ‘the principle invites us to think about how all the rights, duties, roles, and special relationships fit together in in an overall institutional scheme so that people’s interests are advanced in such a way that they are advanced equally’.^{Footnote 41} The limits adduced to the rights should be viewed through the tension between pluralism qua fact and the principle of public equality qua norm.

This is precisely where the right to freedom of expression gains prominence. Allowing individuals to widely express their (divisive) views not only ensures that their interests are equally taken into consideration publicly. On the one hand, it serves the interest of speakers in that ‘the protection of the right to freedom of expression also advances the interests of each person in being recognised and affirmed as an equal in society’.^{Footnote 42} On the other hand, given their cognitive bias, it serves the interest of listeners in that ‘a person can learn just about just as much by having his ideas expressed by others and responded to as he can by expressing his ideas himself’.^{Footnote 43} If one advances a view regardless of what others think, then she does not treat others as equals in the context of deep pluralism. On those two counts, therefore, a wide scope helps. This account also impacts on the legitimacy of the outcome of the democratic procedure. If one ends up vastly disagreeing with the outcome, the fact that one was allowed to make her claims in public and persuade others gives one content-independent reasons to accept the outcome: ‘the thought is that when an outcome is democratically chosen and some people disagree with the outcome, as some inevitably will, they still have a duty to go along with the decision because otherwise they would be treating the others unfairly’.^{Footnote 44}

Finally, the principle of public equality can help resolving conflicts of rights. For Christiano, the two interests to a conflict should be viewed through their contribution to public equality. In the classical case of blasphemy for instance, the blasphemer’s right to express his view publicly and convince others prevails against the harm caused by the act of blasphemy: ‘to ban blasphemy would amount to setting back the interests of the alleged blasphemer so that another’s interests in having his desire that everyone conform to their behavior and speech to his opinions be respected’.^{Footnote 45} Not only should the blasphemer be allowed to express his view. The opponent to blasphemy can also try to persuade the blasphemer to stop so that both interests are equally and publicly advanced. In the next section of the article, I show how this rationale can apply to the Court’s resolution of the conflict between the freedom of expression (Article 10) and the right to reputation (under Article 8).

This overview of the egalitarian defence of democracy should not obscure other conditions that Christiano takes to be central to realise public equality such as an economic minimum.^{Footnote 46} Clearly, the egalitarian argument for democracy could also provide a normative standpoint to assess the limits of the Court’s ‘democratic society’. My point here is limited to showing that the Court’s understanding of freedom of expression is faithful to the cardinal value of public equality when it protects views that ‘offend, shock or disturb’ or when it holds that a ‘democratic society’ requires people to receive plural and contradictory perspectives on an issue of public interest – thereby showing that the Court’s reasoning in fact relies upon democratic-procedural considerations.

IV. The rights, duties and duty-bearers required by the Court’s ‘democratic society’

Up to this point, my objective was to show that the Court’s ‘democratic society’ and ultimately the positive duty derived from pluralism finds support in democratic theory and, within the field, in the egalitarian argument for democracy. I concentrated on the right to freedom of expression (Article 10) and on the main definitional statements of the Court when it has to substantiate its normative notion of ‘democratic society’. In this section, I want to show how this approach can not only illuminate the Court’s identification of particular duties and duty-bearers correlative to that right but also show how it extends to peaceful assembly and association (Article 11) and to the right to free, fair and regular elections (Article 3 Protocol 1). As explained above, all individuals must be equally informed on the issues that affect them all and equally informed on what others think on those issues. If one simply thinks that one can easily access the other’s thoughts on those issues, then one treats others unfairly in the context of deep pluralism. Let us start with more specific right-bearers under Article 10 (expression). Most importantly, the Court cannot insist enough on the role of the press as ‘public watchdog’ of its ‘democratic society’. Since this argument first appeared in Jersild v Denmark, which concerned a TV interview of members of a racist group in a Danish newspaper, the Court has been reinforcing the point:

The allocation of the margin of appreciation is the legal-structural implication of the Court’s attachment to democracy. If freedom of the press is the vehicle of an informed debate on issues of public interest, then the margin of appreciation left to states parties should be thin even when the finding of a violation involves significant costs on the other party (such as in the conflict with the right to reputation under Article 8). This is precisely the argument defended by the Court. As the Court makes clear in Editions Plon v France, which concerned the publication of a book on the health of French president François Mitterrand, ‘the national margin of appreciation is circumscribed by the interests of a democratic society in enabling the press to exercise its vital role of “public watchdog”’.^{Footnote 48} Note here that by ‘political’ or ‘public’ issue, the Court can mean post-electoral comments such as in Lingens v Austria,^{Footnote 49} the issue of doping in sport as in the recent Ressiot et autres c. France ^{Footnote 50} or the quality of public water in the recent Šabanović v Montenegro and Serbia.^{Footnote 51} The core rationale is the same: if the press cannot inform the people about the nature of the public interest and offer plural views on it, one can neither limit one’s own bias on the ideas and actions that should constitute the public good, nor receive the guarantee that one is publicly treated as an equal. The same line of reasoning extends to the actions of governments and political parties that the press may report (as well as NGOs, scientists, intellectuals, etc).

Here again, is there any limit to the freedom of the press? One limit is that, despite the need for exaggeration and provocation needed to realise a ‘democratic society’, there should be a significant distortion of facts. This is the case of Kania and Kittel v Poland, in which two Polish journalists published pictures of a car that a Polish minister supposedly received as a gift from a businessman:

The Court adopted the same argument in Lindon, Otchakovsky-Laurens and July v France, which involved a series of criminal convictions related to the publication of a book on French politician and then-head of Front National party Jean-Marie Le Pen, implicating Le Pen’s responsibility in the party’s violent action. In this case, the Court held that the terms of ‘executioner’ and ‘chief of a gang of killers’ exceeded the limits of the right to freedom of expression on empirical grounds.^{Footnote 53} This is one of the only cases in which reputation outweighs expression. When the expression is about opinions and judgments (non-factual), the Court falls back on its democratic ethos. The expression of criticism, insult, exaggeration or satire is most justifiable when it concerns elected politicians and members of the government. This is best seen in the way the Court understands the conflict between Article 10 and the right to reputation of politicians subject to criticism (under the right to private life in Article 8). In Oberschlik v Austria (no 2), the applicant was convicted and ordered to pay a fine for having used the term ‘idiot’ in reaction to a speech of Austrian politician Jörg Haider. The Court held the following:

The same is true when private citizens publicly insult heads of states as in the recent Eon v France.^{Footnote 55} How does the egalitarian defence of democracy solve this conflict? Again, it suggests considering the costs of limiting each right in light of the quest for public equality. The head of state holds a crucial public role and stands at the core of how a society is organised. This position implies that what people think about that particular person should be constantly and equally debated, so that public equality can be equally advanced: ‘these public figures have a great influence on the public and represent certain ways of living or approaches to the organisation of society or even styles of thinking. Thus they ought to that extent be more open to attacks and the standard of libel that protects them ought to be more stringent, so that open and free discussion about the issues they raise can be advanced’.^{Footnote 56}

Under Article 11 (reunion and association), one can take the Court’s understanding of the role of political parties and the conditions of their dissolution as another example. Since pluralism is at least as pervasive among individuals as among political parties, the sufficient condition for dissolving a party should be stringent. In United Communist Party of Turkey and Others v Turkey, in which the Turkish Communist Party was dissolved by Turkey’s constitutional court, the Court held that ‘there can be no justification for hindering a political group solely because it seeks to debate in public the situation of part of the State’s population and to take part in the nation’s political life in order to find, according to democratic rules, solutions capable of satisfying everyone concerned’.^{Footnote 57} Even when it considered the public defence of sharia law, the Court maintained its line of reasoning. For the egalitarian democrat, banning anti-egalitarian views is a violation of the principle of public equality even if the anti-egalitarian does not adopt it: ‘there is no difficulty in treating people who are opposed to equality in accordance with the principle of public equality. And there is no difficulty in seeing that the banning of the expression of beliefs opposed to equality is a public violation of equality.’^{Footnote 58}

Now, if the political party in question has a real chance to seize power and endanger the democratic process itself once in office (notably by not respecting pluralism^{Footnote 59}), the Court holds that it should be dissolved. This is where the democratic procedure is limited by the substantive values that justify the procedure in the first place. More broadly, any political party or group may promote an alternative ‘societal model’^{Footnote 60} through constitutional changes conducted through democratic rules. The right to free elections (Article 3 (Protocol 1)) is here certainly implied. However, for a ruling party to implement elections and yet constrain pluralism would clearly fail to respect the standards of a ‘democratic society’. On that other count, the Court’s requirement of respecting the democratic procedure also implies substantive limits on the outcome of that procedure. But the normative basis is essentially the same: the respect for public equality in the context of deep pluralism. The interest in promoting public equality is an interest in exercising some rights to some extent. If the outcome of that procedure amounts to limiting that distribution, or to discriminate among groups or persons in the exercise of those rights, then this outcome is anti-democratic. For the egalitarian democrat, ‘the principle of public equality serves as a constraint on the advancement of the interests of the members of society’.^{Footnote 61} The rights therefore operate as trumps against the utilitarian quest for the aggregated majoritarian good when such a quest harms the deontological principle of public equality.

Finally, under the right to free and fair elections (Article 3 (Protocol 1)), the Court has made explicit that elections are inconceivable if the state party has failed to fulfil the positive duty associated with pluralism. On the egalitarian view, this is simply because voting on an issue of public interest without being informed of others’ views on an issue of public interest is suboptimal in terms of realising public equality. The point has been recently reiterated in Şükran Aydın and Others v Turkey, concerning a mayor having campaigned for parliamentary elections in Kurdish, where the Court held ‘that free elections are inconceivable without the free circulation of political opinions and information’.^{Footnote 62} Of course, if it forms part of a conceptual continuum with Articles 10 and 11, the right to elections does not play the same practical role. Freedom of expression is prevalent in pre-electoral periods; in Bowman v United Kingdom, for instance, the Court held that:

As to the more specific duties correlative to the right to free elections, the Court is remarkably modest. It does not examine the constitutional arrangements of the state party in great detail. This modesty is clearly questionable under the egalitarian conception of democracy. The core duty established by the Court is that elections ‘must reflect, or not run counter to, the concern to maintain the integrity and effectiveness of an electoral procedure aimed at identifying the will of the people through universal suffrage’.^{Footnote 64} This implies, most importantly, the absence of pressure on the voters. As the Court held in the same Yumak and Sadak v Turkey, which pertained to the organisation of parliamentary elections in Turkey, ‘the words “free expression of the opinion of the people” mean that elections cannot be conducted under any form of pressure in the choice of one or more candidates, and that in this choice the elector must not be unduly induced to vote for one party or another’.^{Footnote 65} In the same modest vein, the Court protects the effective representation of elected members (most notably, in the national parliament) and their duty to apply the commitments they made during the pre-election period. As the Court held in Ahmed and Others v United Kingdom, which concerned the limits put to the involvement of local government officials in political activities, ‘members of the public also have a right to expect that the members whom they voted into office will discharge their mandate in accordance with the commitments they made during an electoral campaign and that the pursuit of that mandate will not flounder on the political opposition of their members’ own advisers’.^{Footnote 66}

However, the Court does not require states parties to conform to a specific system of elections and representation and the type of ballot designed (proportional, majority, etc) as long as the core duties outlined above are protected. As the Court held in the seminal Mathieu Mohin v Belgium, which concerned various discriminations between Dutch-speaking and French-speaking parliamentary members,

A specific example of the Court’s restraint is that it does not protect the equality of opportunity for election:

This judicial restraint is clearly questionable if one adheres to the egalitarian democrat’s argument. Regulating the conditions for parties to run for election (e.g. campaign finance) is another crucial opportunity to preserve and promote public equality. This issue is crucial because among the conditions to run for election, political parties representing minorities may have significantly lower levels of financial resources and therefore lower capacities to make the views of minorities heard and debated – therefore influencing not only the outcome of elections, but also designing the agenda for discussion. As Christiano explains: ‘the views of the disadvantaged are likely to receive much less of a hearing in the democratic forum. As a consequence, there will be little opportunity to learn from the responses to these views.’^{Footnote 69} The search for public equality remains the guiding value – both procedural and substantive.

In this sense, the intermediate conclusion that needs to be drawn is that the Court is very attentive to considerations of democracy understood in procedural and substantive terms. What is more, I have shown that the Court’s ‘democratic society’ plays a central normative role in justifying the very existence of the Convention rights, in fixing their scope or in balancing their weight against other rights. Further, I have argued that the egalitarian justification of democracy can best make normative sense of their scope and the various duties the Court has generated on its behalf, making public equality the implicit normative ideal of the Court (under the rights examined). Based on this investigation, there is enough to say that there is a conception of democracy underlying the Court’s reasoning.

Before addressing rival accounts and possible objections to this argument, I want first to draw some implications for how the balancing conducted by the Court, more specifically, has been conventionally portrayed and criticised in the literature. This is another point on which the current literature seems rather limited. Indeed, the literature tends to reconstruct the balancing as a largely arbitrary determination between deontology (the rights derived from the status of right-holders) against utilitarianism (the public interest understood as the aggregated preferences of others, or the aggregated preferences of all the state parties). Since this conflict is ultimately between two mutually exclusive concepts of morality, one cannot find a standard that would neatly strike the balance between them. Moreover, the Court remains silent on what exactly constitutes the public interest sufficient to override a right.^{Footnote 70}

The combined effect is a strong scepticism towards the very idea of balancing. As Greer explains, ‘the central problem with the ‘‘balance model’’ is that it suggests a weighing of rights and collective rights which does not only down-grades rights to mere interests, but requires judges – who are ill-equipped to decide what is in the public interest – constantly to defer to non-judicial determinations of how the balance between the two should be struck’.^{Footnote 71} One proposal defended by Greer is that the Court should insist on applying a ‘priority-to-rights principle’ inherent to the Convention itself.^{Footnote 72} This principle, in short, ‘systematically accords rights greater weight than collective goods’^{Footnote 73} without however implying that rights should systematically trump public interests. Rather, ‘the Convention merely suggests that rights should be “prioritized” or “privileged’’ over collective goods in different ways according to the terms of the Convention’^{Footnote 74} and ‘without the need for judges to refer directly to political morality at all’.^{Footnote 75} This view clearly amounts to a principled renouncement of balancing.

There is a point in favour of that strong scepticism towards balancing: the Court describes this step of the review in terms that invite it. In every case brought before it, the Court holds that it ‘must look at the interference in the light of the case as a whole’, including ‘the content of the impugned statements’ and the ‘context in which they were made’. This apparent vagueness has led scholars to argue that ‘the balancing between the various conflicting interests takes place ad hoc, in the absence of a normative theory. This has naturally appeared arbitrary, particularly in view of the general requirement that courts must justify their decisions.’^{Footnote 76} This scepticism could go hand in hand with the democratic objection.

Yet in light of my investigation on the ‘democratic society’ clause, and the justificatory role it plays for the rights examined, portraying the Court’s balancing in those sceptical terms seems just too quick. Greer’s ‘priority-to-rights’ principle presupposes that the wording of the rights should orient the balancing, whereas my interpretation of the reasoning suggests that it is the ‘democratic society’ clause that not only helps the Court strike the balance but also define what those rights are about in the first place. Consequently, the reason why the public defence of sharia law is permitted, for instance, should not have to do with some a priori stringency accorded to the freedom of expression. On my view, it is the deontological basis implicit in ‘democratic society’ (the search for public equality) that explains why the right-holder prevails over the respondent state party.

Surely, I am not extending this point to all the claims the Court has held on all the qualified rights of the Convention. It has been clearly shown that when the Court screens the pan-European practice to determine the appropriate level of protection of the rights under examination and fails to identify it, the respondent state party tends to override the applicant (through the margin of appreciation). More generally, ‘where the Court is unable to find the existence of a European consensus then it will tend to adopt a more literal interpretation of the Convention’.^{Footnote 77} For instance, under Article 9 (freedom of thought and religion), the Court has not specified what it takes to be a sufficiently strong manifestation of a religious belief in question to be protected and invokes the lack of a pan-European standard.^{Footnote 78} Yet the Court does not adopt this majoritarian approach when it finds a violation, which clearly introduces inconsistency in the methodology. There is also room for questioning how that judicial restraint fits into the ‘democratic society’ I have extracted.

V. Addressing potential objections and rival views

I hope to have now shown the extent to which the Court relies on a normative conception of ‘democratic society’ to justify its interpretive authority vis-à-vis its subjects. This conception helps the Court justify the rights’ foundations, identify their correlative duties and duty-bearers and balance rights against other rights or normative considerations. In this section, I draw the implications of my investigation for the ongoing burning debate on the democratic legitimacy of the Court’s authority. Indeed, the argument that its supreme interpretive role cannot be reconciled with basic democratic-procedural standards is currently booming among legal and political theorists. Of course, democratic theorists have for long argued that domestic judicial review does not and cannot respect the representativeness that is required from democratic institutions domestically. Interestingly, the argument is today reactivated in the supranational context of UN Treaty Bodies and/or the Court. I concentrate here on two recent accounts, those of Steven Wheatley and Richard Bellamy. I present their core argument and then assess them in light of my investigation. Finally, I also explain how my view differs from Letsas’ ‘moral reading’ argument.