The Hermeneutics of Deference in Strasbourg Jurisprudence: Normative Principles and Procedural Rationality

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Journal Article
Journal européen des droits de l'homme - European Journal of Human Rights, 2017, 2017 (4), pp. 311 - 337
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The protection of human rights through the European Convention on Human Rights and Fundamental Freedoms occurs through a model of constitutional pluralism characterised by the interplay of the principle of subsidiarity and the function of supranational judicial supervision. Whereas the obligations imposed upon contracting States by the Convention assume a certain level of interaction between the European Court of Human Rights and the national authorities, the precise relationship between the two has largely evolved through the interpretive and adjudicative practices of the Court, as well as the reactions of States to the Court’s judgments. The focus of this article is the hermeneutical techniques employed by the Court which contribute to the development of normative principles in the application of Convention rights. It highlights the limitations with the Court’s use of the doctrine of the “margin of appreciation,” and identifies the increasingly significant normative role of procedural rationality within its jurisprudence.
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