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Judges as Guardians of Constitutionalism and Human Rights

Judges as Guardians of Constitutionalism and Human Rights

Edited by Martin Scheinin, Helle Krunke and Marina Aksenova

This book considers the many challenges that national and supranational judges have to face when fulfilling their roles as guardians of constitutionalism and human rights. The contributors, both academics and judges, discuss key examples of contemporary challenges to judging – including the nature of courts’ legitimacy and its alleged dependence on public support; the role of judges in upholding constitutional values in the times of transition to democracy, surveillance and the fight against terrorism; and the role of international judges in guaranteeing globally recognized fundamental rights and freedoms.

Chapter 15: The role of judges of the European Court of Human Rights as guardians of fundamental rights of the individual

David Thór Björgvinsson

Subjects: law - academic, constitutional and administrative law, criminal law and justice, human rights, law and society


David Th—r Björgvinsson, Professor of law at the Centre of Excellence for International Courts (iCourts) and former Judge of the European Court of Human Rights. This chapter argues that as a reaction to the criticism the ECtHR is adapting its judicial policy or judicial tactics by retreating from its earlier more assertive position as concerns the protection of human rights. This puts into focus questions relating to the role of judges at the Court as guardians of fundamental rights of the individual who must seek to find balance between views asserting human rights as universal rights on one hand and relative rights emphasizing pluralism, deference to national standards and fragmentation on the other. Too much emphasis on the latter to enhance the Court´s legitimatization in the eyes of the judicial and political professions in the Contracting States may put the Court´s “moral capital” at risk and thus weaken it claim to legitimacy on the societal level.

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