Postgraduate Course: Human Rights, Democracy and Courts in Turbulent times (LAWS11560)
Course Outline
| School | School of Law |
College | College of Arts, Humanities and Social Sciences |
| Credit level (Normal year taken) | SCQF Level 11 (Postgraduate) |
Availability | Available to all students |
| SCQF Credits | 20 |
ECTS Credits | 10 |
| Summary | This course examines the overlaps and tensions between democracy and human rights and the role of courts in navigating them. It explores how courts¿particularly the European Court of Human Rights¿adjudicate disputes centred around majority rule, individual freedoms, and democratic stability, using real-world examples of protest bans, speech restrictions, and emergency powers.
Students will critically analyse case studies to understand how restrictions on rights (such as free speech and protest) can be democratically justified, while also examining the legitimacy and role of courts in protecting both human rights and democratic values in an era of democratic backsliding and institutional resistance.
Designed for students interested in human rights law, public law, constitutional law, and political theory, the course develops critical understandings of how rights and courts shape democratic governance. |
| Course description |
Democracy and free speech are increasingly invoked as political weapons. Governments defend restrictions on protest in the name of anti-terrorism, public order and democratic stability; critics warn of shrinking civic space and the erosion of fundamental freedoms. Universities, streets, and online platforms have become battlegrounds over the limits of protest and expression. Across Europe, courts are asked to decide whether protest bans, speech regulations, and emergency powers protect democracy - or undermine it. This course examines these conflicts at their core, exploring how human rights law defines, protects, and sometimes limits democratic participation, and how courts - particularly the European Court of Human Rights - navigate the contested boundary between majority rule, individual freedom, and the preservation of democratic order. It examines a central question at the heart of contemporary public law and political theory: how should we understand the values of democracy and human rights and the role of courts in protecting them?
The course explores the theoretical relationship between human rights and democratic self-government, using the European Court of Human Rights as its principal institutional focus but also looking at other jurisdictions. Students will engage with competing accounts of democracy and examine how each understands the role, scope, and limits of rights.
Building on these foundations, the course addresses classic and contemporary debates about the restrictions of human rights such as free speech and protest, the democratic justifications for restricting human rights, the role and legitimacy of Courts in protecting both human rights and democratic values including the role of international courts such as the European Court of Human Rights. Particular attention is given to the role of courts in a changing political environment marked by democratic backsliding and increasing resistance to independent institutions and supranational oversight.
Through close analysis of leading judgments alongside key theoretical texts, students will develop an advanced understanding of the normative foundations of human rights and democracy and how they are interpreted and applied. The course equips students to critically assess the evolving relationship between rights, courts, and democratic governance, and to formulate their own position on the proper role of human rights law in sustaining - or reshaping - democracy in the contemporary world.
Designed for students with interests in human rights, constitutional and public law, legal and political theory, the course provides a rigorous framework for understanding one of the defining constitutional questions of our time: are human rights a constraint on democracy, a condition of it, or part of democracy itself?
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Entry Requirements (not applicable to Visiting Students)
| Pre-requisites |
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Co-requisites | |
| Prohibited Combinations | |
Other requirements | None |
Information for Visiting Students
| Pre-requisites | None |
| High Demand Course? |
Yes |
Course Delivery Information
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| Academic year 2026/27, Available to all students (SV1)
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Quota: 15 |
| Course Start |
Semester 2 |
Timetable |
Timetable |
| Learning and Teaching activities (Further Info) |
Total Hours:
200
(
Seminar/Tutorial Hours 20,
Programme Level Learning and Teaching Hours 4,
Directed Learning and Independent Learning Hours
176 )
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| Assessment (Further Info) |
Written Exam
0 %,
Coursework
100 %,
Practical Exam
0 %
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| Additional Information (Assessment) |
This course will be assessed entirely by a 5000 word essay worth 100% of the total mark, responding to a set question from a list of questions. |
| Feedback |
Each session will be led by a presentation of the materials by student volunteers. This presentation will be assessed by the CO and feedback given directly after the course. |
| No Exam Information |
Learning Outcomes
On completion of this course, the student will be able to:
- explain the theoretical relationship between human rights and democratic self-government, identify competing accounts of democracy and their implications for rights, and describe the institutional role and legal frameworks such as the European Court of Human Rights within broader debates about democratic legitimacy and supranational oversight
- After studing this course, students will be able to: analyse and interpret leading judgments of the European Court of Human Rights among other Courts, applying legal and theoretical frameworks to evaluate judicial reasoning about rights restrictions ¿ including free speech, protest, and emergency powers ¿ and assess the practical implications of different approaches to rights protection in contexts of democratic backsliding
- critically evaluate normative justifications for restricting fundamental rights, synthesise perspectives from human rights law, constitutional law, and political theory, and construct and defend an original, reasoned position on whether human rights constrain, condition, or constitute democratic self-government.
- construct precise, well-reasoned legal and normative arguments in writing and debate, engage critically with primary sources and scholarly literature, and locate and evaluate legal materials using case law databases and digital research tools
- develop and defend an independent position on the role of human rights law in democratic governance, engage constructively with opposing perspectives in seminar discussion and structured debate, and direct their own research and scholarly development with initiative and integrity
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Reading List
Mill, John Stuart, 'The Ideally Best Form of government is Representative Government' in Mill, John Stuart et al. On Liberty, Utilitarianism, and Other Essays. New edition. Oxford: Oxford University Press, 2015.
¿ J. Habermas, ¿Constitutional Democracy: A Paradoxical Union of Contradictory Principles?¿ (2001) 29(6) Political Theory 766-781.
¿ F. Mégret, ¿Human Rights Populism¿ (2022) Humanity: An International Journal of Human Rights, Humanitarianism, and Development, Volume 13, Number 2, Summer2022, pp. 240-259
¿ J. Waldron, ¿The Right of Rights¿ (1998) 98 Proceedings of the Aristotelian Soceity 307-337.
¿ R. Pildes, ¿What Kind of Right is ¿The Right to Vote¿? (2007) 93 Virginia Law Review 45-52.
¿ R. O¿Connell, Law, Democracy and the European Court of Human Rights, (CUP, 2020), Chapter 7, ¿The Right to Vote¿.
¿ C. MacLeod, ¿Mill on the Liberty of Thought and Discussion¿ in A. Stone and F. Schauer (eds.) The Oxford Handbook of Freedom of Speech (OUP, 2021)
¿ A. Bhagwat and J. Weinstein, ¿Freedom of Expression and Democracy¿ in A. Stone and F. Schauer (eds.) The Oxford Handbook of Freedom of Speech (OUP, 2021)
¿ R. O¿Connell, Law, Democracy and the European Court of Human Rights, (CUP, 2020), Chapter 4 ¿Freedom of Expression¿.
¿ A. Harel, ¿Hate Speech¿ in A. Stone and F. Schauer (eds.) The Oxford Handbook of Freedom of Speech (OUP, 2021)
¿ L. Giewlow Jacobs ¿Freedom of Speech and Regulation of Fake News¿ (2022) 70(1) American Journal of Comparative Law i278-i311.
¿ R. Helm & H. Nasu, ¿Regulatory Responses to ¿Fake News¿ and Freedom of Expression: Normative and Empirical Evaluation¿ (2021) 21(2) Human Rights Law Review 302-328.
¿ R. O¿Connell, Law, Democracy and the European Court of Human Rights, (CUP, 2020), Chapter 5, ¿Association, Assembly and Political Parties¿.
¿ R. Zick, ¿Parades, Picketing, and Demonstrations¿ in in A. Stone and F. Schauer (eds.) The Oxford Handbook of Freedom of Speech (OUP, 2021)
¿ D. Feldman, ¿The Growing Complexity of a Human Right to Assemble and Protest Peacefully in the United Kingdom¿ (2023) 54 VUWLR 155.
¿ R. Simpson, ¿The Relation between Academic Freedom and Free Speech¿ 130/2 Ethics 287-319.
¿ K. Kovacs, ¿Academic Freedom in Europe: Limitations and Judicial Remedies¿ (2024) Global Constitutionalism, 1-24.
¿ Zick, Timothy, ¿New Threats to Campus Protest¿, First Amendment Law Review (forthcoming, 2025), Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5035039
¿ T. Franck, ¿The Emerging Right to Democratic Governance¿ (1992) 86 Am. J. Int¿l. L. 46.
¿ G. H. Fox and B. Roth, ¿Democracy and International Law¿ (2001) 27 Rev. Int. Stud. 327-352.
¿ K. L. Schepple, ¿Restoring Democracy Through International Law¿ (2024) 39 Am. U. Int¿l. Rev. 587.
¿ J. A. G. Griffith, ¿The Political Constitution¿ (1979) 42(1) Modern Law Review 1-21.
¿ J. Rawls, ¿The Supreme Court as Exemplar of Public Reason¿, in J. Rawls, Political Liberalism (Columbia UP: 2005), 231-240.
¿ R. Dworkin, ¿The Majoritarian Premise and Constitutionalism¿ in T. Christiano, Philosophy and Democracy: An Anthology (OUP, 2003)
¿ T. Hickey, ¿The Republican Core Case for Judicial Review¿ (2019) 17(1) International Journal of Constitutional Law 288-316.
¿ J. Waldron, ¿The Core of the Case Against Judicial Review¿ 115 Yale Law Journal (2005) 1346
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Additional Information
| Graduate Attributes and Skills |
Critical Thinking: Students will critically interrogate competing conceptions of democracy and human rights, question the normative foundations of judicial authority, and evaluate how courts reason about the boundaries between majority rule and individual freedom. Close analysis of leading judgments will develop students' ability to identify assumptions, assess evidence, and detect patterns across legal and political contexts.
Curiosity: The course tackles some of the most contested and urgent questions in contemporary public law and political theory ¿ questions without settled answers. Students will be encouraged to ask searching questions about the role of courts, the limits of rights, and the meaning of democracy, and to develop their own considered positions through sustained intellectual inquiry.
Problem Solving: Students will grapple with genuinely difficult legal and political dilemmas ¿ such as when restrictions on free speech or protest can be democratically justified, or how courts should respond to democratic backsliding ¿ developing the capacity to reason through complex problems with competing values and uncertain outcomes.
Individuality: The course explicitly invites students to formulate their own position on the proper role of human rights law in sustaining or reshaping democracy ¿ developing a distinctive, well-reasoned intellectual voice that reflects their own values, disciplinary background, and personal engagement with the material.
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| Keywords | Human Rights,Democracy,Judicial Review,Authoritarianism,European Court of Human Rights |
Contacts
| Course organiser | Dr Cormac Mac Amhlaigh
Tel:
Email: cormac.mac.amhlaigh@ed.ac.uk |
Course secretary | |
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