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The Margin of Appreciation in International Human Rights LawDeference and Proportionality$
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Andrew Legg

Print publication date: 2012

Print ISBN-13: 9780199650453

Published to Oxford Scholarship Online: September 2012

DOI: 10.1093/acprof:oso/9780199650453.001.0001

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Democracy and Participation

Democracy and Participation

Chapter:
(p.69) 4 Democracy and Participation
Source:
The Margin of Appreciation in International Human Rights Law
Author(s):

Andrew Legg

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199650453.003.0004

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

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