Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts

Human Rights Between Law and Politics: The Margin of Appreciation in Post-National Contexts

by Petr Agha (Editor)


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Product Details

ISBN-13: 9781849468657
Publisher: Hart Publishing
Publication date: 01/12/2017
Series: Modern Studies in European Law Series , #76
Pages: 208
Product dimensions: 6.14(w) x 9.21(h) x 0.70(d)

About the Author

Petr Agha is Deputy Director of the Centre for Law and Public Affairs, Researcher at the Institute of State and Law, Czech Academy of Sciences and Senior Lecturer at the Faculty of Law of Charles University in Prague.

Table of Contents

Introduction Petr Agha 1

1 Universalism and Relativism in the Protection of Human Rights in Europe: Politics, Law and Culture Steven Greer 17

I Introduction 17

II The Relative Universality of Human Rights 18

III Human Rights, Multiculturalism and Minority Rights 21

IV The Margin of Appreciation Doctrine under the ECHR 27

V Culture and the Margin of Appreciation 31

VI Conclusion 34

2 On the Varieties of Universalism in Human Rights Discourse Ben Golder 37

I Introduction: Europe, Human Rights and the Universal 37

II Modernist Universalism and its Critics 41

III The Limits of Particularism and the Returns of the Universal 44

IV Human Rights and Hegemonic Universalism 49

V Concluding Thoughts 53

3 When Human Rights Clash in 'the Age of Subsidiarity': What Role for the Margin of Appreciation? Stijn Smet 55

I Introduction 55

II Setting the Scene: Preliminary Remarks on the Margin of Appreciation and Subsidiarity 57

III The Court, the Margin of Appreciation and Human Rights Clashes 59

IV The Court and the 'Clashing Rights' Principle 61

A The 'Clashing Rights' Principle is Inconsistent with its Own Historical Origins 62

B The 'Clashing Rights' Principle Does Not Cohere with the Court's Wider Case Law 63

V A Reinterpreted Role for the Margin of Appreciation in Human Rights Clashes 65

VI Conclusion 69

4 The Margin of Appreciation as an Underenforcement Doctrine Dimitrios Tsarapatsanis 71

I Introduction 71

II Underenforcement, Institutional Considerations and the MoA 74

III Explaining the Underenforcement of Convention Rights: Resource-Bounded Enforcement of the ECHR 78

IV Justifying the Underenforcement of Convention Rights: Normative Institutional Considerations 84

A Shared Responsibility 84

B Subsidiarity 86

C Legitimacy 87

5 Anything to Appreciate?: A Sociological View of the Margin of Rights and the Persuasive Force of Their Doctrines Jirí Pribán 89

I Introductory Remarks 89

II Jurisprudential Triviality of the Margin of Appreciation Doctrine: General Remarks 90

III The Council of Europe between the Universality of Rights and the Particularity of Cultures 92

IV The Semantics of Rights in Politics, Law and Public Morality: From Normative Philosophies to the Social Systems Theory of Rights 93

V Human Rights, Their Evolution and Paradoxes: A Sociological Perspective 97

VI Human Rights as Power Constellations 99

VII The Force and Limits of Legal Doctrine 101

VIII Anything But Discretionary Power? 104

IX From Different Reasons to the Reasonable Differences in the Margin of Appreciation of Doctrine 106

X Concluding Remarks: Human Rights, Functional Differentiation and the Impossibility of Justice 109

6 The Prisoner's Dilemma: The Margin of Appreciation as Proportionality or Recognition? Marco Goldoni Pablo Marshall 111

I Introduction 111

II Two Versions of the Margin of Appreciation 112

III The European Saga of Prisoners' Voting Rights 114

A Preliminaries 114

B The Hirst Case 115

IV Framing the Issue: Legal or Political Constitutionalism? 119

V The MoA and Proportionality Review: Trivialising the Right to Vote 122

VI Reasoning on the Right to Vote 126

7 Social Sensitivity, Consensus and the Margin of Appreciation Nicholas Bamforth 129

I Approaches to the Margin of Appreciation 130

II Sexuality and Same-Sex Partnerships 133

III Morally Contentious Expression 140

IV Conclusion 144

8 Religious Rights and the Margin of Appreciation Dominic McGoldrick 145

I Introduction 145

II The Place of Religion in the ECHR 146

III Religion and Human Rights 146

IV The Jurisprudence of the ECtHRon Religious Rights 149

V The MoA in Religious Cases 152

A The Role of Consensus in Determining the MoA 152

B Critiques of the Application of the MoA in Religious Rights Cases 154

C The Wide MoA and the 'Fair Balance' in Religion Cases 154

VI Case Study: Fernandez Martinez v Spain 158

VII Concluding Comments 166

9 The Paradox of Human Rights and the Role of the European Court of Human Rights in Keeping it Alive Petr Agha 169

I Preliminary Remarks 169

II Human Rights as a Means, Not as an End 172

III Human Rights as a Self-authored Normative Framework 176

IV Conclusions 182

Index 185

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