Democratic Experimentalism and the Public Sphere

Abstract

This chapter argues that democratic-experimentalist forms of judicial review should not be confined to socioeconomic rights but can also be invoked with negative liberties and dignitarian personal rights. An apparent dilemma is this: on the one hand, modern, pluralist democracies are increasingly, and often irreconcilably, divided when it comes to fundamental choices which affect and express the self-understanding of a polity as a whole in matters such as, say, the right to religious freedom, free speech, the rights of transsexuals, and so forth. These matters have even become the subject of entrenched culture wars. And yet, on the other hand, there is an ever-accelerating reliance on courts and the judiciary for addressing those fundamental choices. The judiciary’s influence extends beyond settling disputes and seeps into all aspects of society, codifying the values of our times. But doesn’t this overstretch the resources of consensus-based legality? The concern is that judges are drawn into the crucible of pluralistic politics. By considering the jurisprudence of both the ECtHR and the CJEU, this chapter argues that even here courts can play a benign proceduralizing role, giving voice to the hitherto marginalized. The chapter addresses selected topical issues: the important example of freedom of conscience, which in Europe emerged after many centuries of religious persecution; the clash between free speech and personality rights; and personality rights in the context of (trans-) gender rights and same-sex marriage.