Critical Review of Jurisprudence

• Saul, Matthew 1

Abstract

The European Court of Human Rights (ECtHR) can review the quality of a legislative process. This article calls such review ‘active subsidiarity’ and investigates empirically when and how such subsidiarity shapes legislative processes by tracing implementation of the Court’s decision in one case: Lindheim and Others v. Norway. How did the ECtHR’s criticism of the absence of a balancing exercise shape the corrective legislative process? The article shows that the ECtHR’s reasoning caused the legislative process to include a visible balancing exercise, but that this did not enhance the democratic quality of the parliament’s work on the rights issues. The article analyses these findings from the perspective of the variety of legislative circumstances that come before the ECtHR. It is difficult to anticipate how active subsidiarity will affect legislative processes as a general matter but certain contexts, such as those of minority governments, may be more conducive to democracy enhancing effects. This has implications for how the ECtHR should formulate active subsidiarity.

• 1Associate Professor, Inland Norway University of Applied Sciences, Lillehammer, Norway