Judicial Activism and Judge-Made Law at the ECtHR

Abstract

This paper contributes to an ongoing debate concerning the perceived judicial activism of the European Court of Human Rights (ECtHR). It argues that the output of the Court should be better viewed as the phenomenon of judicial law-making, not unlike in domestic jurisdictions. However, unlike many domestic legal systems, the European Convention on Human Rights framework promotes large quantities of judge-made law. This outcome results from a combination of objective factors that, taken together, enhance the process of judicial law-making by the ECtHR. Those factors include the applied mode of interpretation of the Convention, the approach to its construction, the weak textual basis, the existence of positive obligations, the lack of the doctrine of precedent, the extremely high case law and judicial turnovers, the concurrent legislative inactivity, the existence of the inter-state jurisdiction and the doctrine of autonomous meaning. At the same time, the judicial law-making is only hindered by the doctrine of subsidiarity, the principle of margin of appreciation and the Fourth Instance doctrine. As a consequence of this overwhelming dominance of the factors enhancing the process of judicial law-making over those that hinder it, the ECtHR produces large quantities of judge-made law.