ABSTRACT
This chapter explores the possibility of a distinctively political reading of the European Convention on Human Rights and the European Court of Human Rights’ interpretive practice. The chapter is divided into three parts. The first part sets out the distinctively political conceptual tools that shall be used to make sense of the Court’s decision-making practice. Emphasis is placed on justifying the proposition to the effect that the successful resolution of political issues requires a normative approach that is characteristically ‘suboptimal’ if judged by the standards of any ideal (moral or other) theory of human rights. It then situates the proposed tools in aspects of the Court’s practice and traces out their implications with regard to a number of doctrinal devices used by the Court, most importantly the margin of appreciation doctrine and the consensus approach. The second part provides a summary of the Lautsi case. Finally, the third part explores how political considerations can be plausibly understood to have played out in the context of Lautsi, providing a political understanding of the Court’s reasoning. The general upshot is that a more politically sophisticated representation of the Court’s practice unearths an area of normative considerations, which cannot be reduced to ideal theorising about the content of Convention rights.
