Tsarapatsanis, D. orcid.org/0000-0002-6419-4321 (2018) The ‘consensus approach’ of the European Court of Human Rights as a rational response to complexity. In: Murray, J., Webb, T. and Wheatley, S., (eds.) Complexity Theory and Law : Mapping an Emergent Jurisprudence. Routledge ISBN 9781315158976
Abstract
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.
Metadata
Item Type: | Book Section |
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Authors/Creators: |
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Editors: |
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Copyright, Publisher and Additional Information: | © 2018 Routledge. |
Dates: |
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Institution: | The University of Sheffield |
Academic Units: | The University of Sheffield > Faculty of Social Sciences (Sheffield) > School of Law (Sheffield) |
Depositing User: | Symplectic Sheffield |
Date Deposited: | 14 May 2018 14:02 |
Last Modified: | 17 Jan 2020 01:38 |
Published Version: | https://www.taylorfrancis.com/books/e/978131515897... |
Status: | Published |
Publisher: | Routledge |
Refereed: | Yes |
Identification Number: | 10.4324/9781315158976 |
Open Archives Initiative ID (OAI ID): | oai:eprints.whiterose.ac.uk:130658 |