Justice in the Balance: Democracy, Rule of Law, and the European Court of Human Rights

The surge in authoritarianisms and a politics of friend-and-enemy seem to have rendered the rule of law impotent. Yet many remain dedicated to the rule of law. In Justice in the Balance, Jessica Greenberg explores the sources of that commitment. She develops her analysis from ten years of ethnographic fieldwork with the lawyers and administrators who staff the European Court of Human Rights as well as its surrounding network of advocates. Greenberg argues that believers in the rule of law abide in their faith despite law's faults because it offers a way through which they might come to grips with impossible complexity and violence. Crisis does not unsettle the faithful but strengthens the hold faith has. Greenberg's book centers on the European Court of Human Rights (ECtHR), the judicial arm of the Council of Europe, a pan-European institution born in the aftermath of World War II, and not to be confused with the European Union. At its founding, this political association confronted the unfathomable violence of Europe's recent past by developing the European Convention on Human Rights (ECHR). This agreement established the Court and tasked it with redressing human rights abuses among its member-states. Member-states acquiesce to the Court's judicial oversight and diplomatic execution of its judgments, giving authority to the Court to uphold the rule of law when member-states fail. Greenberg's book comprises six chapters, each dealing with the ECtHR's work at a different scale: the history of ECHR's jurisdiction (chapters one-two), ECtHR's everyday administrative work (chapters three-four), and NGO case-by-case advocacy (chapters five-six). Greenberg investigates participants’ commitment by analyzing their communicative interactions and frameworks. She shows how participants in the ECHR system relied on complex conceptual oppositions to frame legal and policy responses. These intractable tensions served as a space of criteria to balance in judgment. Greenberg thus shows that legitimacy comes first, not as an end of law's rule, but rather “a means through which people feel bound” to law (17). Law's lapses motivate legal action. This gives legitimacy its tenuous yet persistent character. Enduring fragility is law's practice. In chapter one, Greenberg explores how the ECtHR navigates an impossible jurisdiction, balancing human rights oversight with deference to national sovereignty. By appealing to the ambiguities of “culture” in its decisions, the ECtHR established authority by strategically deferring to national culture or grounding intervention in a European common culture. In chapter two, she shows how the ECHR system was challenged by the admission of post-Soviet states, against which its democratic culture had been defined. The ECtHR responded by internalizing West/East binaries into administrative oppositions like “mature/immature,” differentiating standards on a case-by-case and nation-by-nation basis. This both reconstituted East/West hierarchies and afforded flexible application that maintained member-states commitment. In chapter three, Greenberg turns to the quotidian work of the ECtHR, where staff manage contradictory needs through the communicative modalities of the rule of law, efficiency, consistency, and transparency. They communicate efficiency by standardizing their decision making in administrative categories, but risk opacity. They communicate consistency by linking cases citationally, but risk losing sight of justice. They communicate transparency by maintaining an immense open flow of information, including information on how to navigate that information, but risk losing intelligibility in the torrent. By means of these communicative modalities, the work of the Court can be understood in terms other than “success” and “failure:” the rule of law is not an outcome, it is an ongoing performance far too complex to measure in such narrow terms. Yet measurement remains a tool for the ECHR system. In chapter four, Greenberg shows how staff and advocates use numeric accounting to aggregate and disaggregate cases, enumerating like and distinguishing unlike. They thereby manage their caseload, while also helping to draw connections among cases to narrate structural stories that might be lost among individual cases. In her final two chapters, Greenberg investigates the work of advocates who bring cases before the Court. In chapter five she discusses their temporal advocacy, whereby advocates make use of the life cycle of litigation and judgment. They use long-running cases to build networks of expertise: they diagnose and correlate the issues at hand, making structural violations visible, while still finding remedies for their clients, whose injuries have a shorter timeline than executing judgments. However, time alone is not enough to make structural violence visible. In chapter six Greenberg shows that participants also practice evidentiary advocacy, drawing together doctrinal architectures, linking cases of repeated harm across a statistical infrastructure that can reveal discrete instances as structural events of racial discrimination. Justice in the Balance tells the story of law's here-and-now, illuminating its affective draw. Greenberg's text sheds light on the hold law has on those who make its legitimacy real. The rule of law perdures in-and-by unending practices of coordination among differently placed stakeholders. Enduring commitment to the fragile rule of law is grounded in the feeling that law offers a way to make dire conditions tractable for at least some degree of amelioration. It feels too important not to try, despite all worthy critique. But this does not mean unquestioned acquiescence to law's story. The work of the ECtHR asks how to grapple with complexity and violence while remaining conscious of the ameliorative effort's failures, costs, and complicities. ECHR's lawyers, advocates, and other professionals bring not naïveté or cynicism but dedicated resignation. They are more than willing to admit law's failures, but the rule of law is the venue and project available. In her conclusion, Greenberg argues that scholars cannot avoid interpellation into the rule of law's project if they aim to discuss it. As participants, critics must remain vigilant but should accept that the rule of law is a problem space wherein variously positioned persons grapple with impossible challenges. They (we) must accept responsibility for their (our) role in the world as it is as well as for a project of bringing about a different world, or a world of an otherwise. It remains an open question whether and how the rule of law might partake in alternative forms of life, as well as whether the very harms it means to resolve are in fact tied to the conditions of law's possibility. However, by telling this story, Greenberg opens new questions for practices of living differently. If the rule of law offers important lessons for building lasting institutional praxis, of the role faith plays in its enduring lifeworld, how might its lessons be transformed into a form of life that differently relates to harm in the first place? Justice in the Balance contributes an answer in its scholarly example, one worth not only contemplating but emulating. Greenberg balances the attitude of critique with respect for ECHR participants. In so doing, Greenberg shows what lessons performing the rule of law offers. To build a lasting institutional praxis requires a leap of faith: accepting responsibility for the world as it is and attempting to navigate the incommensurabilities of conflict and harm, while believing it can be otherwise, no matter how tenuous the prospects.