Building Consensus on European Consensus
Judicial Interpretation of Human Rights in Europe and Beyond

Presents a critical evaluation of a controversial interpretative tool the ECtHR uses to answer morally/politically sensitive human rights questions.

Panos Kapotas (Edited by), Vassilis P. Tzevelekos (Edited by)

9781108473323, Cambridge University Press

Hardback, published 17 January 2019

500 pages, 1 b/w illus.
23.5 x 15.7 x 2.9 cm, 0.83 kg

Should prisoners have voting rights? Should terminally ill patients have a right to assisted suicide? Should same-sex couples have a right to marry and adopt? The book examines how such questions can be resolved within the framework of the European Convention of Human Rights. 'European consensus' is a tool of interpretation used by the European Court of Human Rights as a means to identify evolution in the laws and practices of national legal systems when addressing morally sensitive or politically controversial human rights questions. If European consensus exists, the Court can establish new human rights standards that will be binding across European states. The chapters of the book are structured around three themes: a) conceptualisation of European consensus, its modus operandi and its effects; b) critical evaluation of its legitimacy and of its outputs; c) comparison with similar methods of judicial interpretation in other legal systems.

Preface Christos L. Rozakis
Introduction
1. How (difficult is it) to build consensus on (European) consensus? Panos Kapotas and Vassilis P. Tzevelekos
Part I. Understanding European Consensus: Meaning, Function, Mechanics, History: 2. European consensus: new horizons Kanstantsin Dzehtsiarou
3. Consensus in the legitimacy-building era of the European Court of Human Rights Ed Bates
4. Consensus, stasis, evolution: reconstructing argumentative patterns in evolutive ECHR jurisprudence Christian Djeffal
5. The consensus argument in NGOs' Amicus Curiae Briefs: defending minorities through a creatively used majoritarian argument Laura Van den Eynde
6. Determining the content of the European consensus concept: the hidden role of language Jaroslav V?trovský
7. How the ECtHR's use of European consensus considerations allows legitimacy concerns to delimit its mandate Kristin Henrard
8. Borges' Pierre Menard, Author of the Quixote and the idea of a European consensus Sionaidh Douglas-Scott
Part II. Appraising European Consensus: Legitimacy and National Divergence: 9. A better signpost, not a better walking stick: how to evaluate the European consensus doctrine Andreas Føllesdal
10. Constructive consensus and domestic democracy Thomas Kleinlein
11. The European consensus doctrine and the ECtHR quest for public confidence Or Bassok
12. Can European consensus encourage acceptance of the European convention on human rights in the United Kingdom? Merris Amos
13. When to use European consensus: assessing the differential treatment of minority groups by the European Court of Human Rights Dimitrios Kagiaros
14. When the European Court of Human Rights decides not to decide: the cautionary tale of A, B and C v. Ireland and referendum-emergent constitutional provisions Fiona de Londras
Part III. Consensus Analysis Outside the ECHR System: 15. The Inter-American Court of Human Rights' tentative search for Latin American consensus Lucas Lixinski
16. National consensus and the eighth amendment: is there something to be learned from the United States Supreme Court Jaka Kukavica
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 Jens T. Theilen
18. Consensus as challenge and retraction of rights: can lessons be drawn from – and for – EU citizenship law? Niamh Nic Shuibhne
Conclusion
19. Building consensus on European consensus Conor Gearty.

Subject Areas: Human rights & civil liberties law [LNDC], Public international law [LBB], International law [LB], Law [L], EU & European institutions [JPSN2]