The ‘consensus approach’ of the European Court of Human Rights as a rational response to complexity

The present chapter uses complexity theory to argue that the so-called ‘consensus approach’ of the European Court of Human Rights (henceforth ‘the Court’ or ‘ECtHR’) can be a rational response to the cognitively demanding task of interpreting and applying the European Convention of Human Rights (henceforth ‘the Convention’ or ‘ECHR’) to member states of the Council of Europe. The chapter begins by setting the stage in two ways. First, drawing on recent literature on the subject, I provide a succinct sketch of a number of complexity theory concepts and argue that they can be relevant to the study of the ECHR. Second, I briefly present the consensus approach and some of the criticisms that have been addressed against it, with specific reference to the moral reading of the Convention. The moral reading of the ECHR, associated with Ronald Dworkin’s legal interpretivism and defended by leading commentators such as George Letsas (Letsas 2007), is one of the most forceful sources of criticism of the consensus approach. It is also an independently plausible and sophisticated theory of interpretation of the ECHR. Thus, using complexity theory to show that, despite initial appearances, the moral reading of the Convention could be compatible with the consensus approach is an interesting result in itself.