From flexible to variable standards of judicial review: the responsible domestic courts doctrine at the European Court of Human Rights

Abstract

A great deal of criticism of the ECtHR has relied on the assumption that it has attempted to micro-manage domestic high courts that are perfectly capable of carrying out Strasbourg-proof rights interpretation themselves. The responsible courts doctrine is nascent and contested as a standard of review. Its relationship to other forms of deference to domestic authorities under the umbrella of margin of appreciation and deference to the Court of Justice of the European Union under the ‘equivalent protection doctrine’ is also under-determined. Standards of judicial review is an established domain of comparative inquiry into constitutional and supreme courts. In domestic law contexts, there are two distinct theoretical lines of inquiry into standards of judicial review. Domestic judiciaries can thus be ranked according to their strength of judicial review, with different types of review offering different advantages and disadvantages for the implementation of domestic judgments.