Judicial Deference Allows European Consensus to Emerge

Abstract

The Emerging Consensus doctrine applied by the European Court of Human Rights (ECHR) directs the court to follow the policies adopted by the majority of states in Europe. If most states protect a certain human right, states that fail to protect this right will be found in violation of the Convention for the Protection of Human Rights and Fundamental Freedoms (Convention). This doctrine may help the court to make good policy decisions because it draws on the choices of many states in a way that follows the logic of a mathematical model called the Condorcet Jury Theorem — at least so long as the states examined are sufficiently similar to one another and decide independently. The court also applies a doctrine called the Margin of Appreciation, which directs it to defer to state policies under certain conditions. These are competing doctrines and the more the court applies one the less it applies the other. Yet this paper argues that a correct application of the Margin of Appreciation may in fact help limit the Emerging Consensus to states who are sufficiently similar to one another and in addition give states an incentive to decide independently. In this way, granting a Margin of Appreciation can help the court to get the best results out of the Emerging Consensus doctrine.