George Letsas
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199203437
- eISBN:
- 9780191707773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203437.003.0004
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter looks at the role that drafters' intentions and the text should play in the interpretation of the ECHR. The European Court has been relatively consistent in rejecting intentionalism and ...
More
This chapter looks at the role that drafters' intentions and the text should play in the interpretation of the ECHR. The European Court has been relatively consistent in rejecting intentionalism and textualism as interpretive methods, in favor of the so-called ‘evolutive’ or ‘living instrument’ approach. The chapter provides a philosophical defence of the Court's approach drawing on the relevant debates about the interpretation of the US Constitution. It is argued that neither the text, nor drafters' intentions, can alone justify why the ECHR grants a particular right or not. Certainty and publicity, two values often cited in support of intentionalism and textualism, have no application in the ECHR which is neither meant to guide individuals' conduct nor to protect States' expectations about what their ECHR obligations are. On the contrary, the ECHR aims to prohibit States from treating individuals in a certain way, however convenient or justified they may find it.Less
This chapter looks at the role that drafters' intentions and the text should play in the interpretation of the ECHR. The European Court has been relatively consistent in rejecting intentionalism and textualism as interpretive methods, in favor of the so-called ‘evolutive’ or ‘living instrument’ approach. The chapter provides a philosophical defence of the Court's approach drawing on the relevant debates about the interpretation of the US Constitution. It is argued that neither the text, nor drafters' intentions, can alone justify why the ECHR grants a particular right or not. Certainty and publicity, two values often cited in support of intentionalism and textualism, have no application in the ECHR which is neither meant to guide individuals' conduct nor to protect States' expectations about what their ECHR obligations are. On the contrary, the ECHR aims to prohibit States from treating individuals in a certain way, however convenient or justified they may find it.
George Letsas
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199203437
- eISBN:
- 9780191707773
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203437.001.0001
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This book provides a philosophical study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-American legal, political, and moral ...
More
This book provides a philosophical study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-American legal, political, and moral philosophy, it also aims to provide a normative theory of the foundations of the ECHR rights. The author argues that, unlike the role of human rights in theories of global justice, the purpose of the ECHR is not to set conditions for the legitimate tolerance of states at the international level; and unlike the role of human rights in the work of international human rights organisations, the purpose of the ECHR is not to set acceptable political goals that all states have a reason to pursue, albeit progressively and at their own discretion. Rather, the ECHR is best seen as enshrining human rights that are both legal and liberal: they are founded upon liberal egalitarian principles that impose conditions on the legitimate use of coercion by member states against persons within their jurisdiction. The normative role of the Convention rights is therefore no different to that of domestic constitutional rights within a liberal democracy. The book provides a critical account of the use of state consensus, evolutive interpretation, and the doctrine of the margin of appreciation in the case law of the European Court of Human Rights. It defends the view that the ECHR rights, properly understood, are absolute rights which must be applied in a principled manner across the 47 European member states, regardless of drafters' intentions and states' current consensus.Less
This book provides a philosophical study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-American legal, political, and moral philosophy, it also aims to provide a normative theory of the foundations of the ECHR rights. The author argues that, unlike the role of human rights in theories of global justice, the purpose of the ECHR is not to set conditions for the legitimate tolerance of states at the international level; and unlike the role of human rights in the work of international human rights organisations, the purpose of the ECHR is not to set acceptable political goals that all states have a reason to pursue, albeit progressively and at their own discretion. Rather, the ECHR is best seen as enshrining human rights that are both legal and liberal: they are founded upon liberal egalitarian principles that impose conditions on the legitimate use of coercion by member states against persons within their jurisdiction. The normative role of the Convention rights is therefore no different to that of domestic constitutional rights within a liberal democracy. The book provides a critical account of the use of state consensus, evolutive interpretation, and the doctrine of the margin of appreciation in the case law of the European Court of Human Rights. It defends the view that the ECHR rights, properly understood, are absolute rights which must be applied in a principled manner across the 47 European member states, regardless of drafters' intentions and states' current consensus.
