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A Theory of Interpretation of the European Convention on Human Rights
George Letsas
164 pages
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234x156mm
978-0-19-920343-7
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Hardback
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13 December 2007
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This item is printed to order. Items which are printed to order are normally despatched and charged within 5-10 days.
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- Provides a critical account of the use of state consensus, evolutive interpretation, and the doctrine of the margin of appreciation in the case law of the ECHR
- Defends the view that the ECHR rights are absolute rights which must be applied in a principled manner across the 46 European member States
- Discuses cases as well as philosophical theories - striking an appropriate balance between the two
Does the right to life under article 2 ECHR include the right to terminate one's life? Does the right to private life under article 8 ECHR include the right to sleep at night free from airplane noise? Does the right to property under article 1 Protocol 1 ECHR entitle the former King of Greece to claim compensation for the expropriation of royal property, following a referendum? Do homosexual couples have a right to adopt under article 8 ECHR? This book looks at both how the European Convention on Human Rights has, and ought to, be interpreted. Unlike a purely doctrinal approach, it aims at proposing an evaluative theory
of interpretation for the European Convention on Human Rights. And, unlike a purely normative account, it seeks to locate interpretive values within the history of the ECHR by surveying and analysing all the relevant judgements of the European Court of Human Rights. Consequently, the book discusses cases as much as it discusses philosophical theories, striking an appropriate balance between the two.
Examining how law should be interpreted and what legal rights individuals have, this book raises important questions of political morality that are both capable - and in need of - principled justification. George Letsas argues that evolutive interpretation does not refer to how most European member States now understand their obligations under the Convention but to how
they should understand them given the egalitarian values that they share. He defends the idea of an emerging consensus combined with a theory of autonomous concepts as a way to provide the appropriate authority for the Court to adopt an egalitarian theory of human rights.
A Theory of Interpretation of the European Convention on Human Rights provides a philosophically informed study of the methods of interpretation used by the European Court of Human Rights in Strasbourg. By drawing on Anglo-Americal legal, political and moral philosophy, the book also aims to provide a normative theory of the foundations of the ECHR rights.
Readership: Academics and advanced students of European
human rights, jurisprudence, and philosophy
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George Letsas, Lecturer in Law, University College London
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"Constituting a profound reflection on the Courts interpreting role, the book [...] both enriches legal theory and provides stimulating reading material for everyone dedicated to the cause of human rights." - From the foreword by Judge Spielmann "Dr Letsas's book is as challenging as any theoretical writing about the European Convention on Human Rights in recent years. It starts from a very precise understanding about the nature of human rights and about the role of courts charged with the interpretation of the documents which transform the political idea of human rights into the regime of law. Not every Convention lawyer will find his positions utterly convincing but they all will benefit from absorbing and responding to the
thesis he puts forward. This is an attractive and efficiently-written book which straddles the line between theory and practice with some confidence." - Colin Warbrick, Birmingham Law School "A powerfully argued, compelling and strikingly original contribution which deserves a central place in contemporary debates about the Convention and human rights in Europe...The author is...to be congratulated not only for producing such a ground-breaking and erudite study, but for opening up a potentially rich and fruitful research agenda to which he and others can contribute for a long time to come." - Steven Greer, International Journal on Minority and Group Rights 16, 2009
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1: Human Rights, Legality, and the ECHR
Introduction
Background to and a Very Brief History of Human Rights
No One-Size-Fots-All Theory of Human Rights
Human Rights as Conditions of Legitimacy
Human Rights, Legal Rights, and Interpretivism
Conclusion
2: Autonomous Concepts, Conventionalism, and Judicial Discretion
Introduction
The Emergence of Autonomous Concepts
Good-Faith Violations of the ECHR
A More Recent Example of an Autonomous Concept
Autonomous Concepts and Judicial Discretion
Need for Harmonization and Uniform Application?
Autonomous Concepts as Disagreement
Does Disagreement Entail Judicial Discretion
Possible Choices
3: The Semantic Sting and the ECHR
Intentionalism, Textualism, and Evolutive Interpretation
Introduction
Originalism in Constitutional Law
Golder v UK VCLT and the Case of Unenumerated Rights
After Golder: the ECHR as a Living Instrument
The Failures of Originalism
The Object and Purpose of the ECHR
Evolutive Interpretation: Truth Not Current Consensus
4: Two Concepts of the Margin of Appreciation
Introduction
Theories of International Human Rights Law
The Substantive Concept of the Margin of Appreciation
The Structural Concept of the Margin of Appreciation
Consensus and Public Morals
5: Liberal Principles of Human Rights Interpretation
Introduction
Rights, Interests, and Reasons
Liberal Egalitarian Theories of Rights: Rawls and Dworkin
Liberal Egalitarian Principples for the Interpretation of the Limitation Clauses
6: Public Morals, Consensus, and Rights Inflation: A Critque
Introduction
Public Morals and the Moralistic Preferences of the Majority
Consensus, Piecemeal Evolution, and Legality
Rights Inflation: Hatton and the Right to Sleep Well
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The specification in this catalogue, including without limitation price, format, extent, number of illustrations, and month of publication, was as accurate as possible at the time the catalogue was compiled. Occasionally, due to the nature of some contractual restrictions, we are unable to ship a specific product to a particular territory. Jacket images are provisional and liable to change before publication.
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