Balancing and justification at the ECtHR: the pivotal concept of “democratic necessity”

In the last chapter, I surveyed the role of the ECtHR qua legal interpreter. As we have seen, the ECtHR tends to privilege a teleological and evolutive interpretation of rights. This immersion alone allows us to envision that the terms of the dispute between ethical and political conception may need to be reconsidered. To recall, Beitz’s central claim is that moral reasoning is unnecessary to account for the practices. Legal interpretation suggests the opposite: the process of legal interpretation specifies and concretizes, in non-functional terms, the core structure and content of human rights as protecting individual interests vis-à-vis States Parties. Needless to say, such process takes place within a specific legal and international institutional framework: the ECtHR captures the interests protected by an international treaty within the constraints of its judicial role specified in Chapter 6.