2009 brought an existential crisis to the European Court of Human Rights (ECtHR). In November, it unanimously ordered Italy to remove crucifixes from public schools. Backlash was unprecedented. The government promptly announced it would not comply. Politicians and social actors all across the political spectrum harshly criticized the decision and bashed the Court. Ten European countries joined Italy in referring the case to the Grand Chamber of the Court, which reversed the decision in 2011. The storm abated. Lautsi v. Italy likely received the most public attention of any ECtHR judgment. Much of the Court’s subsequent case-law was decided with an eye on avoiding another Lautsi.
This Article analyzes the social and political reactions to the Lautsi judgment in Italy in order to answer urgent questions in international law: how do the decisions of international courts obtain legitimacy, and why are they facing increasing trouble in doing so?
Lautsi and its aftermath suggest that international courts' decisions are not legitimated merely through the soundness of their legal reasoning, but also by their ability to be perceived as consistent with national identity. Political debate will strive to situate a controversial decision as aligned with national values and mores. A successful international judicial decision is one that helps a community to find its better self.
Sebastián Guidi, Law Over Legalism: International Court Legitimacy in Lautsi v. Italy, 33 Duke Journal of Comparative & International Law 45-96 (2023)
Available at: https://scholarship.law.duke.edu/djcil/vol33/iss1/2