Pub Date : 2018-06-10DOI: 10.1017/9781108564779.012
Or Bassok
A search for the term “public confidence” in the database of the European Court of Human Rights’ judgments reveals that the ECtHR speaks time after time on the judiciary’s need for public confidence in order to function properly. In this chapter, I explain that this view reflects a new understanding – first detected in the US Supreme Court – of the source of judicial legitimacy. Rather than adhering to the traditional understanding of judicial legitimacy in terms of expertise, the ECtHR understands its source of legitimacy in terms of enduring public support. This explanation of the ECtHR’s understanding of its legitimacy exposes a new function of the European Consensus doctrine. Beyond functioning as a tool of decision-making and as a tool to enhance the acceptability of the ECtHR’s judgments, the EuC also functions as a mechanism that helps to monitor and maintain the ECtHR’s public confidence. As long as there is a European consensus on the legal positions adopted in most ECtHR judgements, public resistance to the Strasburg Court would be minimal. The chapter concludes with a discussion of the tension between maintaining the ECtHR’s public confidence and its mission to further and promote the cause of human rights.
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Pub Date : 2018-06-01DOI: 10.1017/9781108564779.015
F. Londras
• Users may freely distribute the URL that is used to identify this publication. • Users may download and/or print one copy of the publication from the University of Birmingham research portal for the purpose of private study or non-commercial research. • User may use extracts from the document in line with the concept of ‘fair dealing’ under the Copyright, Designs and Patents Act 1988 (?) • Users may not further distribute the material nor use it for the purposes of commercial gain.
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Pub Date : 2017-01-10DOI: 10.1017/9781108564779.009
Sionaidh Douglas-Scott
This chapter examines aspects of the European consensus, taking as its starting point Jorge Luis Borges’ intriguing parable, Pierre Menard, Author of the Quixote. The story is about Menard’s seemingly impossible and preposterous, but ultimately realized, exercise of rewriting the Cervantes Don Quixote in the 20th century. Applied to human rights, it provides a valuable insight. For it suggests that the universal appeal that certain cultural norms (in our case, human rights) possess is partly explained by the very fact that divergent cultures and histories can somehow simultaneously converge on the same understandings. Human rights norms may be the product of diverse and varied cultural, historical and legal systems. Yet the different legal resources in the member states of the European Convention may nonetheless provide a basis for a consensus. Consensus implies some sort of accord, but there are many ways to reach an accord, and all sorts of interesting and stimulating questions, including literary ones, such as those of Borges, to be asked about this process.
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Pub Date : 1900-01-01DOI: 10.1017/9781108564779.017
Jaka Kukavica
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.
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Pub Date : 1900-01-01DOI: 10.1017/9781108564779.008
K. Henrard
{"title":"How the ECtHR’s Use of European Consensus Considerations Allows Legitimacy Concerns to Delimit Its Mandate","authors":"K. Henrard","doi":"10.1017/9781108564779.008","DOIUrl":"https://doi.org/10.1017/9781108564779.008","url":null,"abstract":"","PeriodicalId":192738,"journal":{"name":"Building Consensus on European Consensus","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133617698","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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