National Consensus and the Eighth Amendment

Abstract

The European consensus doctrine as employed by the European Court of Human Rights has long been considered as unclear, imprecise, and inconsistent. This paper discusses why is it that the United States Supreme Court conceptualises consensus analysis in a more consistent manner in consulting ‘national consensus’ in its Eighth Amendment jurisprudence. It demonstrates that, on the one hand, the ECtHR has failed to provide consistent answers to questions that define European consensus as a judicial doctrine, such as (i) what types of cases trigger consensus analysis, (ii) what factors are relevant in establishing consensus, and (iii) does consensus analysis determine the outcome of any given case, or does the court take into account other considerations. The United States Supreme Court, on the other hand, has provided a significantly more consistent and workable answer to these questions. In the rare cases in which this was not the case, the reasons for any inconsistencies are identified and explained. Then, this paper identifies various structural causes for differences between the two courts and between the judicial environments in which they operate. On the basis of this, the paper discusses some specific lessons the ECtHR could (and should) learn to consolidate its doctrine.