Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared

Cambridge Yearbook of European Legal Studies, 2012-2013, Volume 15

U of Michigan Public Law Research Paper No. 449

36 Pages Posted: 6 Apr 2015 Last revised: 9 Apr 2015

See all articles by Christopher McCrudden

Christopher McCrudden

Queen's University Belfast - School of Law; University of Michigan Law School; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Date Written: 2013

Abstract

This chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

Keywords: European Court of Human Rights, Court of Justice of the European Union, comparative law, human rights, citation of foreign judgments

JEL Classification: K19, K35, K39, K41

Suggested Citation

McCrudden, Christopher, Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared (2013). Cambridge Yearbook of European Legal Studies, 2012-2013, Volume 15, U of Michigan Public Law Research Paper No. 449, Available at SSRN: https://ssrn.com/abstract=2589548

Christopher McCrudden (Contact Author)

Queen's University Belfast - School of Law ( email )

School of Law
Belfast BT7 1NN, Northern Ireland BT7 1NN
United Kingdom

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law

Boalt Hall
Berkeley, CA 94720-7200
United States

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