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17 - Levels of Generality in the Comparative Reasoning of the European Court of Human Rights and the European Court of Justice

Towards Judicial Reflective Equilibrium

from Part III - Consensus Analysis Outside the ECHR System

Published online by Cambridge University Press:  04 January 2019

Panos Kapotas
Affiliation:
University of Portsmouth
Vassilis P. Tzevelekos
Affiliation:
University of Liverpool
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Summary

This chapter compares the way in which the European Court of Human Rights (ECtHR) and the European Court of Justice (ECJ) make use of vertically comparative references – as part of the ‘European consensus’ argument and in developing general principles, respectively. It argues that the two courts are situated within different cultures of adjudication connected, inter alia, to the courts’ style of reasoning and their institutional context. The ECJ’s culture of adjudication allows it to be less sensitive to differences among the European Union’s Member States, which coheres with its use of comparative references at a relative high level of generality. This helps to explain, for example, why it has been reluctant to apply more specific forms of comparative argument in interpreting the Charter of Fundamental Rights, as its Article 52(4) might otherwise suggest. Conversely, the ECtHR’s culture of adjudication involves more sensitivity to differences among the States parties – to the point that it is sometimes accused of abdicating its role to set meaningful human rights standards because of this sensitivity. The chapter concludes by sketching a normative framework that would mitigate such criticism, based on the Rawlsian notion of a ‘reflective equilibrium’, which would integrate different levels of generality into the ECtHR’s comparative reasoning.
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Chapter
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Building Consensus on European Consensus
Judicial Interpretation of Human Rights in Europe and Beyond
, pp. 392 - 420
Publisher: Cambridge University Press
Print publication year: 2019

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