Problems of legitimacy regarding the European convention on human rights : formalism, fuzziness, or lack of theory?


University of British Columbia

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Master of Laws - LLM




This paper inquires into legitimacy problems regarding the European Convention on Human Rights, in particular the European Court's own idea or theory of its legitimate practice. I argue that even if the Court's jurisprudence shows some flexibility - and the interpretive work integrates to some extent three dimensions of legitimacy and law, normativity, formality and efficacy - the prevailing method of the Court is marked by a positivistic formalist legal tradition, seeing law predominantly as a formal and self-legitimating system of norms. The positivistic claim of the subjectivity of meaning becomes problematic however in the application of an international human rights' document. The Court's reliance on normative elements turns out to be in constant tension with the positivistic conception of consent as a basis for obligation. This tension is, I argue, manifested in the Court's confusing consensus methodology, as well as in its dichotomy methodology of "autonomous interpretation" and "margin of appreciation". I criticize the Court's consensus methodology, whether in the form of drawing consensus from the international community, or from the domestic legislation of member states of the Council of Europe. I argue that the prevailing positivistic formalist approach to the European Convention is based upon assumptions found in general legal theory and international law theory. To underpin my analysis of the Court's case law, I draw on critical approaches to both legal theory and international legal discourse that attempt to be external to the assumptions of theory, scholarship and practice. A theme pursued throughout the paper is the importance of an external perspective to legal theory and practice. As a part of my analysis, I look at new approaches to law and legal reasoning as "fuzzy", and conclude that, as applied to the European Convention, these approaches tend to draw upon a formalist conception of law.

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