Adjudicating rights: a theory of evolutive interpretation for the European Court of Human Rights

Thesis

This project is a theoretical investigation of the living instrument doctrine in the European Court of Human Rights. It seeks to identify its purpose, limits, and the means of its operation, in a way which shows the approach in its best light. I consider the proper role of consensus under the doctrine, and whether evolutive interpretation should be able to work backwards to roll back previously recognised Convention entitlements. To develop the proposed conception, the project interrogates the theories and criticisms advanced in the existing scholarship, and appraises it in view of five core ideals and qualities: the self-standing importance of human rights, legitimacy, democracy, the rule of law and effectiveness. I confront evolutive interpretation with the challenges of its influential critics, including Sumption, Finnis, Vermeule, and Malcolm. The core argument advanced here is that the living instrument doctrine is best seen as an exercise in moral reading of the Convention involving the Dworkinian method of constructive interpretation, oriented to the goal of correctly articulating the content of our underlying human rights, but subject to separate and self-standing limits grounded in concerns relating to legitimacy, democracy, the rule of law, and effectiveness. Accordingly, I reject the view that the living instrument doctrine is best seen as a function of the changing European consensus, or as a direct corollary of the Court’s doctrine of effectiveness. Under my proposed approach, the Court should not rely on consensus as an epistemic tool for identifying the content of human rights, but it may rely on it to determine the applicability of limits to the Court’s mandate for evolutive interpretation. The thesis argues in favour of recognising that evolutive interpretation should be able to apply backwards in appropriate circumstances, but should not do so simply to reflect the changing consensus about the content of rights.

Authors: Ksiazek, K

• DOI: 10.5287/ora-9g7mnzxa7
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: evolutive interpretation; human rights; European Court of Human Rights; theory of interpretation; living instrument
• Subjects: Human Rights Law; Jurisprudence