Details
- Proposes an evaluative theory of interpretation for the European Convention on Human Rights
- Locates interpretive values within the history of the ECHR by surveying and analysing all the relevant judgements of the European Court of Human Rights
This book looks at both how the European Convention on Human Rights has been interpreted and how it ought to be interpreted. Unlike a purely doctrinal approach, it aims at proposing an evaluative theory of interpretation for the European Convention on Human Rights. And unlike a purely normative account, it seeks to locate interpretive values within the history of the ECHR by surveying and analysing all the relevant judgements of the European Court of Human Rights. Consequently, the book discusses cases as much as it discusses philosophical theories, seeking to strike the appropriate balance between the two.
Recent developments have raised mportant jurisprudential issues in relation to the interpretation of the ECHR which point to the relationship between the two foundational principles of a supranational human rights system: state sovereignty on one hand and the universality of human rights on the other. This book analyses the idea that creative interpretation and choice in interpretation amounts, by default, to illegitimate discretion and is used to wave the flag of judicial self-restraint. It balances this against the inconsistency or lack of clarity in the methods used by the Court, most notably the margin of appreciation doctrine, and looks at the criticism often levelled at the Court that its use of the doctrine masks the real basis for its decisions. The cases that have been coming before the European Court of Human Rights in recent years pose serious interpretive challenges. Does the right to life under art. 2 ECHR include the right to terminate one's life? Does the right to private life under article 8 ECHR include the right to sleep at night free from airplane noise? Does the right to property under art. 1 Protocol 1 ECHR entitle the former King of Greece to claim compensation for the expropriation of royal property, following a referendum? Do homosexual couples have a right to adopt under art. 8 ECHR? This book argues that how law should be interpreted, and what legal rights individuals have, are important questions of political morality that are both capable, and in need of, principled justification. Finally, the book argues that evolutive interpretation does not refer to how most European member states now understand their obligations under the Convention but to how they should understand them given the egalitarian values that they share, and defents the idea of an emerging consensus combined with a theory of autonomous concepts as a way to provide the appropriate authority for the Court to adopt an egalitarian theory of human rights.
Readership: Academics and advanced students of European human rights, jurisprudence, and
1: Human Rights, Legality, and the ECHR
Introduction
Background to and a Very Brief History of Human Rights
No One-Size-Fits-All Theory of Human Rights
Human Rights as Conditions of Legitimacy
Human Rights, Legal Rights, and Interpretivism
Conclusion
2: Autonomous Concepts, Conventionalism, and Judicial Discretion
Introduction
The Emergence of Autonomous Concepts
Good-Faith Violations of the ECHR
A More Recent Example of an Autonomous Concept
Autonomous Concepts and Judicial Discretion
Need for Harmonization and Uniform Application?
Autonomous Concepts as Disagreement
Does Disagreement Entail Judicial Discretion?
Possible Choices
3: Intentionalism, Textualism, and Evolutive Interpretation
Introduction
Originalism in Constitutional Law
Golder v UK: VCLT and the Case of Unenumerated Rights
After Golder: the ECHR as a Living Instrument
The Failures of Originalism
The Object and Purpose of the ECHR
Evolutive Interpretation: Truth Not Current Consensus
4: Two Concepts of the Margin of Appreciation
Introduction
Theories of International Human Rights Law
The Substantive Concept of the Margin of Appreciation
The Structural Concept of the Margin of Appreciation
Consensus and Public Morals
5: Liberal Principles of Human Rights Interpretation
Introduction
Rights, Interests, and Reasons
Liberal Egalitarian Theories of Rights: Rawls and Dworkin
Rawls's Theory of Rights
Dworkin's Rights as Trumps
Liberal Egalitarian Principles for the Interpretation of the Limitation Clauses
6: Public Morals, Consensus, and Rights Inflation: A Critque
Introduction
Public Morals and the Moralistic Preferences of the Majority
Consensus, Piecemeal Evolution, and Legality
Rights Inflation: Hatton and the Right to Sleep Well
George Letsas, Lecturer in Law, University College London
"Constituting a profound reflection on the Courts interpreting role, the book [...] both enriches legal theory and provides stimulating reading material for everyone dedicated to the cause of human rights." - From the foreword by Judge Spielmann
"Dr Letsas's book is as challenging as any theoretical writing about the European Convention on Human Rights in recent years. It starts from a very precise understanding about the nature of human rights and about the role of courts charged with the interpretation of the documents which transform the political idea of human rights into the regime of law. Not every Convention lawyer will find his positions utterly convincing but they all will benefit from absorbing and responding to the thesis he puts forward. This is an attractive and efficiently-written book which straddles the line between theory and practice with some confidence." - Colin Warbrick, Birmingham Law School
"A powerfully argued, compelling and strikingly original contribution which deserves a central place in contemporary debates about the Convention and human rights in Europe... The author is... to be congratulated not only for producing such a ground-breaking and erudite study, but for opening up a potentially rich and fruitful research agenda to which he and others can contribute for a long time to come." - Steven Greer, International Journal on Minority and Group Rights 16, 2009
