Building Consensus on European Consensus: Judicial Interpretation of Human Rights in Europe and Beyond

doi:10.1017/9781108564779

Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marry and adopt? The book examines how such questions can be resolved within the framework of the European Convention of Human Rights. 'European consensus' is a tool of interpretation used by the European Court of Human Rights as a means to identify evolution in the laws and practices of national legal systems when addressing morally sensitive or politically controversial human rights questions. If European consensus exists, the Court can establish new human rights standards that will be binding across European states. The chapters of the book are structured around three themes: a) conceptualisation of European consensus, its modus operandi and its effects; b) critical evaluation of its legitimacy and of its outputs; c) comparison with similar methods of judicial interpretation in other legal systems.

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Contents

Building Consensus on European Consensus
pp i-ii
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Building Consensus on European Consensus - Title page
pp iii-iii
Judicial Interpretation of Human Rights in Europe and Beyond
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Copyright page
pp iv-iv
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Contents
pp v-vii
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Contributors
pp viii-ix
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Foreword
pp x-xiii
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Acknowledgements
pp xiv-xiv
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1 - How (Difficult Is It) to Build Consensus on (European) Consensus?
pp 1-26
- By Panos Kapotas, Vassilis P. Tzevelekos
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Part I - Understanding European Consensus
pp 27-186
Meaning, Function, Mechanics, History
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2 - European Consensus
pp 29-41
New Horizons
- By Kanstantsin Dzehtsiarou
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3 - Consensus in the Legitimacy-Building Era of the European Court of Human Rights
pp 42-70
- By Ed Bates
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4 - Consensus, Stasis, Evolution
pp 71-95
Reconstructing Argumentative Patterns in Evolutive ECHR Jurisprudence
- By Christian Djeffal
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5 - The Consensus Argument in NGOs’ Amicus Curiae Briefs
pp 96-119
Defending Minorities through a Creatively Used Majoritarian Argument
- By Laura Van den Eynde
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6 - Determining the Content of the European Consensus Concept
pp 120-140
The Hidden Role of Language
- By Jaroslav Větrovský
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7 - How the ECtHR’s Use of European Consensus Considerations Allows Legitimacy Concerns to Delimit Its Mandate
pp 141-166
- By Kristin Henrard
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8 - Borges’ Pierre Menard, Author of the Quixote and the Idea of a European Consensus
pp 167-186
- By Sionaidh Douglas-Scott
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Part II - Appraising European Consensus
pp 187-334
Legitimacy and National Divergence
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9 - A Better Signpost, Not a Better Walking Stick: How to Evaluate the European Consensus Doctrine
pp 189-209
- By Andreas Follesdal
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10 - Constructive Consensus and Domestic Democracy
pp 210-235
- By Thomas Kleinlein
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11 - The European Consensus Doctrine and the ECtHR Quest for Public Confidence
pp 236-257
- By Or Bassok
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12 - Can European Consensus Encourage Acceptance of the European Convention on Human Rights in the United Kingdom?
pp 258-282
- By Merris Amos
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13 - When to Use European Consensus
pp 283-310
Assessing the Differential Treatment of Minority Groups by the European Court of Human Rights
- By Dimitrios Kagiaros
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14 - When the European Court of Human Rights Decides Not to Decide
pp 311-334
The Cautionary Tale of A, B & C v. Ireland and Referendum-Emergent Constitutional Provisions
- By Fiona de Londras
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Part III - Consensus Analysis Outside the ECHR System
pp 335-467
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15 - The Inter-American Court of Human Rights’ Tentative Search for Latin American Consensus
pp 337-363
- By Lucas Lixinski
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16 - National Consensus and the Eighth Amendment
pp 364-391
Is There Something to Be Learned from the United States Supreme Court?
- By Jaka Kukavica
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17 - Levels of Generality in the Comparative Reasoning of the European Court of Human Rights and the European Court of Justice
pp 392-420
Towards Judicial Reflective Equilibrium
- By Jens T. Theilen
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18 - Consensus as Challenge and Retraction of Rights
pp 421-447
Can Lessons Be Drawn from – and for – EU Citizenship Law?
- By Niamh Nic Shuibhne
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19 - Building Consensus on European Consensus
pp 448-467
- By Conor Gearty
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Index
pp 468-488
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Building Consensus on European Consensus

Judicial Interpretation of Human Rights in Europe and Beyond

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