Human Rights Between Law and Politics by Petr Agha

Author:Petr Agha
Language: eng
Format: epub
Publisher: Bloomsbury UK
Published: 2017-11-15T00:00:00+00:00

IX.FROM DIFFERENT REASONS TO THE REASONABLE DIFFERENCES IN THE MARGIN OF APPRECIATION OF DOCTRINE

Using Stanley Fish’s radical attack on the concept of impartial and neutral legal principles, one of the initial criticisms of the margin of appreciation doctrine, which accuses it of compromising the principled monistic and neutral character of human rights by the power of judicial discretion giving into the particularities of culture and tradition, may be regarded as full of cultural contaminations, moral substances and political particularities itself. If all principles and ‘right laws’ are manifestations of discretionary forces and substantive prejudgments operating within the system of positive law, the margin of appreciation doctrine is no less principled than other doctrines and theories of fundamental human rights and their adjudication.

The politically impartial non-partisan, morally neutral and legally principled character of human rights as the normative foundation of modern national and international polities is questioned by theories and philosophies which consider human rights outcomes of political contestations, social conflicts and historical evolution. However, the ECtHR would never respond to the monist and universalistic criticisms of its margin of appreciation doctrine by admitting its juridically discretionary and politically contingent character. Instead, the ECtHR internalises the simple fact of political differentiation and segmentation of the Council of Europe into individual signatory states as the general structural precondition to engage in specific legal argumentations regarding the limits and benefits of normative pluralism within the Council of Europe.

Like the EU, the Council of Europe is part of the post-1945 dream of European integration as the rule of law-driven enterprise externally legitimised by the ideals of democracy and human rights. The Council of Europe’s internal structures and mechanisms of integration remained closer to the traditional international law and politics, yet their supranational and post-national appeal preceded the constitution of the post-national EU. Under the ECHR, national governments significantly reformulated their domestic constitutional structures and engaged in supranational-legal integration through the semantics of human rights and the jurisprudence of the ECtHR.

Political segmentation of the Council of Europe into nation states guaranteed the principle of democratic accountability and law-making as a founding principle, while making these states organisations of legal enforcement of the ECHR interpreted and applied through the ECtHR’s judgments and doctrinal jurisprudence. Therefore, the structural and textual differences between the legal systems of the ECHR and state constitutions have always informed debates about normative, institutional, interpretive and organisational pluralism and different legal arguments limiting its centrifugal effects.

Differences between individual states are as significant as their overall commitment to the ECHR as both a legal text and a political context in supranational Europe. Unlike in the EU, in which Member State governments often perform the opposition function to the supranational EU governance by reformulating national interests as part of European policies, the signatory states as organisational segments of the ECHR constitute political and legal structures committed to the semantics of human rights. Nevertheless, the semantics of European human rights was recently adopted by the EU itself. The systemic differentiation of European supranational governance and nation

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