Theory of Interpretation of the European Convention on Human Rights Book

Table of Cases xxv

Table of Legislation xxix

Introduction 1

1 Human Rights, Legality, and the ECHR 17

Introduction 17

Background to and a Very Brief History of Human Rights 18

No One-Size-Fits-All Theory of Human Rights 21

Human Rights as Conditions of Legitimacy 26

Human Rights, Legal Rights, and Interpretivism 29

Conclusion 36

2 Autonomous Concepts, Conventionalism, and Judicial Discretion 37

Introduction 37

The Emergence of Autonomous Concepts 40

Good-Faith Violations of the ECHR 43

A More Recent Example of an Autonomous Concept 46

Autonomous Concepts and Judicial Discretion 48

Need for Harmonization and Uniform Application? 49

Autonomous Concepts as Disagreement 51

Does Disagreement Entail Judicial Discretion? 53

Possible Choices 56

3 Intentionalism, Textualism, and Evolutive Interpretation 58

Introduction 58

Originalism in Constitutional Law 60

Golder v UK: VCLT and the Case of Unenumerated Rights 61

After Golder: the ECHR as a Living Instrument 65

The Failures of Originalism 68

The Object and Purpose of the ECHR 72

Evolutive Interpretation: Truth Not Current Consensus 74

4 Two Concepts of the Margin of Appreciation 80

Introduction 80

Theories of International Human Rights Law 81

The Substantive Concept of the Margin of Appreciation 84

The Structural Concept of the Margin of Appreciation 90

Consensus and Public Morals 92

5 Liberal Principles of Human Rights Interpretation 99

Introduction 99

Rights, Interests, and Reasons 99

Liberal Egalitarian Theories of Rights: Rawls and Dworkin 105

Rawls's Theory of Rights 105

Dworkin's Rights as Trumps 110

Liberal Egalitarian Principles for theInterpretation of the Limitation Clauses 117

6 Public Morals, Consensus, and Rights Inflation: A Critique 120

Introduction 120

Public Morals and the Moralistic Preferences of the Majority 120

Consensus, Piecemeal Evolution, and Legality 123

Rights Inflation: Hatton and the Right to Sleep Well 126

Bibliography 131

Index 137