Andreas Follesdal has posted Tracking Justice Democratically (Social Epistemology 2017) on SSRN. Here is the abstract:
Is international judicial human rights review anti-democratic and therefore illegitimate, and objectionably epistocratic to boot? Or is such review compatible with – and even a recommended component of – an epistemic account of democracy? This article defends the latter position, laying out the case for the legitimacy, possibly democratic legitimacy of such judicial review of democratically enacted legislation and policy making. Section 1 offers a brief conceptual sketch of the kind of epistemic democracy and the kind of international human rights courts of concern – in particular the European Court of Human Rights (ECtHR). Section 2 develops some of the relevant aspects of democratic theory: components of an epistemic justification for democratic majority rule, namely to determine whether proposed policy and legislation bundles are just, and providing assurance thereof. Several critical premises and scope conditions are noted in section 3. Section 4 considers the case(s) for international judicial review, arguing that such review helps secure those premises and scope conditions. The section goes on to consider the scope such review should have – and some objections to such an account.