Jump to ContentJump to Main Navigation
The Margin of Appreciation in International Human Rights LawDeference and Proportionality$
Users without a subscription are not able to see the full content.

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

Show Summary Details
Page of

PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 03 December 2021

Democracy and Participation

Democracy and Participation

(p.69) 4 Democracy and Participation
The Margin of Appreciation in International Human Rights Law

Andrew Legg

Oxford University Press

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

Oxford Scholarship Online requires a subscription or purchase to access the full text of books within the service. Public users can however freely search the site and view the abstracts and keywords for each book and chapter.

Please, subscribe or login to access full text content.

If you think you should have access to this title, please contact your librarian.

To troubleshoot, please check our FAQs , and if you can't find the answer there, please contact us .