The European Court of Human Rights as a Pragmatic Institution

E. Brems (ed.), Conflicting between fundamental rights, Intersentia, 2008

33 Pages Posted: 12 Jun 2014

See all articles by Olivier De Schutter

Olivier De Schutter

University of Louvain (Belgium)

Françoise Tulkens

European Court of Human Rights; Catholic University of Louvain (UCL)

Date Written: June 6, 2014

Abstract

Fundamental rights are usually thought of as rules, which prescribe certain arrangements and exclude others ; and it is the role of courts, in the traditional view, to expound their significance by applying predefined rules to the facts submitted to them. This view, characteristic of the formalistic conception of law, breaks down most clearly in contexts where one set of facts calls for the application of different rules which are not hierarchically ordered. Such situations oblige us to examine the virtues of a pragmatic conception of legal adjudication, and to explore the procedural implications of such a conception, in which the principles guiding the judicial reasoning are permanently reinvented in the course of their implementation. This paper offers such an examination, by studying the different approaches which have been adopted towards situations where fundamental rights conflict with one another. It first sets aside the situations where, because of its source, the ‘conflict between rights’ is in fact more imaginary than real, and can be addressed through classical, hierarchical methods (section II). It then examines where such classical methods fail, whether we seek to rely on the usual ‘necessity’ test generally applied to the restrictions imposed on the rights and freedoms recognized in the Convention, on the metaphor of the ‘balancing of rights’, or on the doctrine of the ‘margin of appreciation’ (section III). It then explores the procedural solution, based on a pragmatic understanding of legal adjudication (section IV). Taking as its departure point the idea of ‘practical concordance’ developed in German constitutional law, it illustrates both the promises and the limitations of this approach. The alternative it offers proposes to examine how the background creating the conflict between rights may have to be affirmatively transformed in order to avoid a repetition of the conflict, and how the failure by the State to thus remove the source of the conflict may engage its international responsibility.

Keywords: Conflicts of rights, Balancing, Practical concordance, Pragmatism in legal adjudication.

Suggested Citation

De Schutter, Olivier and Tulkens, Françoise, The European Court of Human Rights as a Pragmatic Institution (June 6, 2014). E. Brems (ed.), Conflicting between fundamental rights, Intersentia, 2008. Available at SSRN: https://ssrn.com/abstract=2446909

Olivier De Schutter (Contact Author)

University of Louvain (Belgium) ( email )

Place Montesquieu, 3
B-1348 Louvain-la-Neuve, 1348
Belgium

Françoise Tulkens

European Court of Human Rights ( email )

Strasbourg, Alsace region
France

Catholic University of Louvain (UCL) ( email )

Place Montesquieu, 3
Louvain-la-Neuve, 1348
Belgium

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