CHAMPAIGN, Ill. — A new book by a University of Illinois Urbana-Champaign expert examines the world’s premier human rights court as rule of law comes under threat.
The book “Justice in the Balance: Democracy, Rule of Law, and the European Court of Human Rights” considers not just why the rule of law and human rights matter, but how they come to matter in everyday ways. The book looks at the limits and resilience of the law through a fine-grained analysis of an international human rights court based in Strasbourg, France.
A binding institution that rules on cases in 46 European countries, the European Court of Human Rights is considered the “crown jewel” of the Council of Europe, an international organization dedicated to human rights, democracy and the rule of law. It is an example of both the possibilities and frustrating limits of law as a response to state violence, says Jessica R. Greenberg, a professor of anthropology, the former acting director of the European Union Center and author of the book.
“The court’s proponents have described it as the most successful human rights institution in the world but it has also faced several crises in recent years,” she said. “My book takes a critical look at why people pin their hopes on this institution and the different ways they use it. It’s the story of a transnational institution from the perspective of the people who make it work, from the ground up.”
According to Greenberg, the rule of law is both more important and more vulnerable than ever. Since the end of the Cold War, as people have become disenchanted with democracy and democratic institutions, they’ve increasingly turned to the law and legal institutions as a countermeasure to rising populism, inequality and war.
While legal and democratic institutions are meant to work in balance, their importance can sometimes tip one way or another, depending on historical circumstances. Understanding the relationship between law and democracy historically and socially can help us strategize in the face of challenges to both, Greenberg said.
“There’s always been a sort of careful balancing act between democracy and the rule of law in most democratic systems, and when you can’t achieve something in one domain, you often go to the other,” she said “That balance between democracy and law is really fundamental to what we think of as healthy, mature democratic systems.
“That’s what got me interested in the European Court of Human Rights. It was observing how people who were committed to justice and social change use the institutions and means of organizing available to them in lots of different ways.”
Drawing on extensive fieldwork conducted over eight years with human rights advocates, lawyers and judges at the European Court of Human Rights, the book interrogates what kind of justice is possible through the law, Greenberg said.
“If you want to know what the rule of law is in practice, you have to know how it works,” she said. “And so figuring out how it works begins, as I say in the book, in the halls, institutions, offices and hallway conversations where people are making it from the ground up. And so that meant interviews with lawyers, judges, registry, staff, people across the Council of Europe. It meant interviews with strategic litigators who were bringing cases from across all four corners of Europe to try to affect social change and human rights, one case at a time. It started with talking to people.”
When she began her research, there was a real sense of hope and excitement about the European Court of Human Rights, Greenberg said. That excitement has cooled in recent years and, with the Russian invasion of Ukraine, curdled into disillusionment. But a sense of more pragmatic optimism remains, she said.
“There was this new moment of democratic flourishing in Europe and in the sphere of human rights law — and I think that was true when I began the research, but it was not true when I ended the research,” Greenberg said. “So my period really spans what I think we’re experiencing now: a global crisis in democracy and the rule of law.
“That’s the commitment of the book, to try to tell the story of the rule of law as it’s lived, as it’s defended, as it breaks down, and the excitements, fears, successes and failures along the way.”
Greenberg also did her homework, literally and figuratively, by simultaneously enrolling in the U. of I. College of Law’s master’s degree program while writing the book.
“I spent a year as a law student,” she said. “I sat for exams and earned my degree. I loved it. The faculty were incredibly generous but they didn’t cut me any slack. It would have been very easy for me to come into a legal institution and just critique it from my outsider perspective. But I don’t think we learn things when we, as an outsider, blindly critique them. I think we need empathy, and I think we need to inhabit other people’s worlds fundamentally in order to be able to understand.
“In some ways you’ve got to earn the right to be in the conversation, and that’s a really important lesson for ethnographers and anthropologists.”
The book will be published by Stanford University Press.
