Revisiting the Margin of Appreciation: A Reply to Føllesdal

Abstract

In this paper I revisit the doctrine of the Margin of Appreciation in the light of recent debates about democracy and state sovereignty. The doctrine is still used in different contexts with different meaning, causing confusion. Understood as the idea that qualified rights are abstract principles whose application requires evaluative judgment, and may allow for diversity, it is uncontroversial. Understood as the idea that human rights courts should defer on the view of domestic legislatures or the judiciary as to what counts as a violation, the doctrine is morally objectionable on two grounds. First, deference undermines the egalitarian dimension of human rights whose role is to protect individuals against both contempt and neglect by the governing majority of the day; Second, it undermines the value of the Rule of Law and courts’ duty to decide cases under principled consistency.

Keywords: European Convention on Human Rights, Margin of Appreciation, Judicial Deference, International Human Rights, Democracy, State Sovereignty