The Tyranny of Choice and the Interpretation of Standards: Why the ECtHR Uses Consensus

Abstract

Recent studies in social psychology have consistently shown that individuals are inherently averse to ‘choice overload’. Faced with complex choice sets, they are unhappier with the choices they make, more likely to regret their decision, and more prone to reverse their initial choice. This article tests the hypothesis that individuals’ innate aversion to choice overload might explain why courts and tribunals interpret standards, such as fairness, necessity, and proportionality, in the way that they do. Drawing on the findings of an empirical study of 461 judgments of the Grand Chamber of the European Court of Human Rights, the article suggests that the Court’s consensus doctrine must be understood partially as a reaction to the ‘tyranny of choice’.

Keywords: interpretation, European Court of Human Rights, European Convention on Human Rights, consensus, consensus doctrine