The European Consensus Doctrine and the ECtHR Quest for Public Confidence

Abstract

A search for the term “public confidence” in the database of the European Court of Human Rights’ judgments reveals that the ECtHR speaks time after time on the judiciary’s need for public confidence in order to function properly. In this chapter, I explain that this view reflects a new understanding – first detected in the US Supreme Court – of the source of judicial legitimacy. Rather than adhering to the traditional understanding of judicial legitimacy in terms of expertise, the ECtHR understands its source of legitimacy in terms of enduring public support. This explanation of the ECtHR’s understanding of its legitimacy exposes a new function of the European Consensus doctrine. Beyond functioning as a tool of decision-making and as a tool to enhance the acceptability of the ECtHR’s judgments, the EuC also functions as a mechanism that helps to monitor and maintain the ECtHR’s public confidence. As long as there is a European consensus on the legal positions adopted in most ECtHR judgements, public resistance to the Strasburg Court would be minimal. The chapter concludes with a discussion of the tension between maintaining the ECtHR’s public confidence and its mission to further and promote the cause of human rights.