A Theory of Interpretation of the European Convention on Human Rights

Paperback | March 14, 2009

byGeorge Letsas

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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 purelynormative 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 theappropriate 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 theother. 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, mostnotably 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 claimcompensation 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 bothcapable, 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, anddefents 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.

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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 purelynormative account, it seeks to locate interpretive v...

George Letsas is Lecturer in Law at University College London

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Format:PaperbackDimensions:300 pages, 9.21 × 6.14 × 0.01 inPublished:March 14, 2009Publisher:Oxford University PressLanguage:English

The following ISBNs are associated with this title:

ISBN - 10:0199563888

ISBN - 13:9780199563883

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Table of Contents

1. Human Rights, Legality, and the ECHRIntroductionBackground to and a Very Brief History of Human RightsNo One-Size-Fots-All Theory of Human RightsHuman Rights as Conditions of LegitimacyHuman Rights, Legal Rights, and InterpretivismConclusion2. Autonomous Concepts, Conventionalism, and Judicial DiscretionIntroductionThe Emergence of Autonomous ConceptsGood-Faith Violations of the ECHRA More Recent Example of an Autonomous ConceptAutonomous Concepts and Judicial DiscretionNeed for Harmonization and Uniform Application?Autonomous Concepts as DisagreementDoes Disagreement Entail Judicial DiscretionPossible Choices3. The Semantic Sting and the ECHRIntentionalism, Textualism, and Evolutive InterpretationIntroductionOriginalism in Constitutional LawGolder v UK VCLT and the Case of Unenumerated RightsAfter Golder: the ECHR as a Living InstrumentThe Failures of OriginalismThe Object and Purpose of the ECHREvolutive Interpretation: Truth Not Current Consensus4. Two Concepts of the Margin of AppreciationIntroductionTheories of International Human Rights LawThe Substantive Concept of the Margin of AppreciationThe Structural Concept of the Margin of AppreciationConsensus and Public Morals5. Liberal Principles of Human Rights InterpretationIntroductionRights, Interests, and ReasonsLiberal Egalitarian Theories of Rights: Rawls and DworkinLiberal Egalitarian Principples for the Interpretation of the Limitation Clauses6. Public Morals, Consensus, and Rights Inflation: A CritqueIntroductionPublic Morals and the Moralistic Preferences of the MajorityConsensus, Piecemeal Evolution, and LegalityRights Inflation: Hatton and the Right to Sleep Well