Human rights courts as norm-brokers

Abstract

This article develops an understanding of human rights courts as ‘norm-brokers’. We regard ‘norm-brokering’ as an exegetic method of judicial reasoning, ultimately concerned with reason-giving and the quality of justification. It entails robust engagement with alternative norms raised in the course of human rights adjudication. Norm-brokering thus involves much more than the mere cataloguing of alternative norms—and, at a minimum, a methodical approach to the question of normative harmonization. We suggest that the process of norm-brokering contributes to ‘public reason’ by enhancing the intelligibility of judgments. This, in turn, helps confound legitimacy-based critiques of human rights courts. The argument is supported by an analysis of 10 years’ worth of European Court of Human Rights judgments, focusing on the ways in which norms from the Inter-American human rights system are relied upon (or not) by the Strasbourg Court.