Non-judicial rights review. The Promise and Limits of Rights Review by Non-Judicial Public Institutions in Germany, the EU and the UN

• Applicant: Dr. Andrej Lang
• Subject Area: Public Law
• Term: since 2020
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 441470804

In legal scholarship, especially in Germany given the prominent role of the Constitutional Court, rights protection and judicial review are regularly equated, and rights are, from an institutional perspective, predominantly conceived of from the perspective of courts. The proposed research project posits to shift the focus of scholarly attention from the judicial to the non-judicial realm. This shift is warranted for two reasons. First, a comprehensive and effective system of rights protection is incomplete without complementary mechanisms of non-judicial rights review (“NJRR”) as courts face structural limitations relating to access, institutional function and legitimacy. Second, the law, actors, procedures, mechanisms and contexts of NJRR have hardly been explored at all, let alone systematically and in connection with each other, even though this is an important real-world institutional phenomenon. The research project therefore aims at analyzing the various forms of NJRR by parliaments, ministerial bureaucracies, ombudsmen and data protection officers, fundamental rights agencies and human rights councils and committees in Germany, the EU and the UN from a multi-level perspective. The overarching questions of the project are which structures, instruments, principles and specific features characterize NJRR, how it is distinct from judicial review, how it functions in legal and political practice, and what prospects and limitations it has as an effective mechanism for the protection of fundamental and human rights. From a methodological perspective, the project has an empirical dimension and relies upon a broad variety of sources such as qualitative interviews with key actors as well as publicly available and internal governmental documents. In addition, it takes a multi-level perspective that analyzes the manifold multi-level interdependencies and interactions between the different national, supranational and international NJRR mechanisms. The aim is to systematically open up the field of NJRR in its various manifestations and to develop a typology that highlights its specific characteristics as a whole and of the various types of review mechanism and deepens the understanding of how NJRR functions. The project intends to contribute to the institutional dimension of human rights theory through the specific perspective of non-judicialness in rights protection and to stimulate regulatory reorientation with regard to the optimal institutional and procedural design of NJRR. It seeks to reveal basic differences between judicial and non-judicial rights review and to develop a better understanding of the interaction between judicial and non-judicial actors. Finally, it aims at enriching legislative theory with an empirically-analytically oriented analysis of the interplay between parliaments and fundamental rights that indicates the extent to which parliaments are capable of principled rights considerations that transcend party politics.

• DFG Programme: Research Grants