Functional Disobedience, National Courts and the ECtHR

Renáta Uitz and András Sajó, The Demise of Rights: Critical Essays, Eleven International Publishing, Forthcoming

22 Pages Posted: 27 Apr 2020

Date Written: April 1, 2020

Abstract

This work explores the concept of functional disobedience. Functional disobedience is a consequence of the success of the ECHR and of the progressive involvement of national judges in the life and enforcement of this instrument. Concerning the structure of this work, first I shall introduce three points that will serve as guidelines to read these complex phenomena. Second, I shall try to show how national (especially Constitutional and Supreme) courts disobey, by mainly focusing on two jurisdictions (Italy and United Kingdom) but also other experiences (Austria and Germany for instance) will sometimes be recalled. Finally, I shall try to show some examples of change in the case law of the ECtHR that have been induced by national judges.

Keywords: Functional Disobedience, ECHR, National Courts

Suggested Citation

Martinico, Giuseppe, Functional Disobedience, National Courts and the ECtHR (April 1, 2020). Renáta Uitz and András Sajó, The Demise of Rights: Critical Essays, Eleven International Publishing, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3565999 or http://dx.doi.org/10.2139/ssrn.3565999

Giuseppe Martinico (Contact Author)

Scuola Superiore Sant'Anna, Pisa ( email )

Piazza Martiri della libertà
33
Pisa, 56127
Italy
(+39)3494441388 (Phone)

HOME PAGE: http://www.stals.santannapisa.it

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