Rational Choice within Normative Constraints: Compliance by Liberal Democracies with the Judgments of the European Court of Human Rights
36 Pages Posted: 6 Feb 2012 Last revised: 5 Jan 2015
Date Written: February 6, 2012
In this paper, I propose a hybrid constructivist-rationalist theory of compliance with the judgments of the European Court of Human Rights (ECtHR) and investigate its validity both quantitatively and qualitatively, based on a comprehensive database on the compliance status of all ECtHR judgments rendered up until 2010. While much research on state compliance with normative obligations has remained wedded either to a constructivist, norm-based perspective or to a rationalist analytic lens that foregrounds actor preferences and cost-benefit calculations, a fully specified model of compliance has to allow for the simultaneous operation of the logics of appropriateness and of consequences. Specifically, I argue that the question whether to comply with a judgment needs to be separated analytically from the question of how to comply. In the context of European liberal democracies, the first question is best answered by positing a normative compliance pull exerted by the judgments of a duly constituted court, even one operating beyond the boundaries of the state. At the same time, norms as well as the judgments that interpret and apply them frequently retain an element of indeterminacy that provides states with alternatives as to how to comply with a given judgment. In light of such a choice space, and given an assumed preference for the status quo ante, governments will tend to choose those institutional and interpretive options that minimize - materially and normatively - the domestic impact of an adverse judgment and will, as a result, in most cases choose narrow or otherwise restrictive compliance.
Keywords: Compliance, Judgments, European Court of Human Rights, Constructivism, Rational Choice, Liberal Democracies
JEL Classification: K33
Suggested Citation: Suggested Citation