Adjudicating national contexts – Domestic particularity in the practices of the European Court of Human Rights?
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Adjudicating national contexts – Domestic particularity in the practices of the European Court of Human Rights? / Esmark, Magnus; Olsen, Henrik Palmer; Larsen, Mathias Smed; Byrne, William Hamilton.
I: German Law Journal, Bind 23, Nr. 4, 26.05.2022, s. 465-492.Publikation: Bidrag til tidsskrift › Tidsskriftartikel › Forskning › fagfællebedømt
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TY - JOUR
T1 - Adjudicating national contexts – Domestic particularity in the practices of the European Court of Human Rights?
AU - Esmark, Magnus
AU - Olsen, Henrik Palmer
AU - Larsen, Mathias Smed
AU - Byrne, William Hamilton
PY - 2022/5/26
Y1 - 2022/5/26
N2 - The established view in textbooks and legal commentary is that the Court’s case law should be viewed as a coherent whole. In this article, we ask whether European human rights law is as unified and European as is often presumed. Based on a citation network of all Chamber judgments from 1998–2018, we argue that the practice of the Court is to some extent split in different strands of case law, where the Court reuses particular factual and legal arguments against the same state without applying those as precedent against other states. We quantify this phenomenon and exemplify it qualitatively. Our data also suggests that the trend is declining. We explain this by the introduction of the Pilot Judgement procedure and an increasing bureaucratization of the Registry, aligning the citation practices of the Court’s five sections. The article situates itself within a broader debate about both legal pluralism and the principle of subsidiarity inherent to the European human rights system and proposals to bring the Court “closer” to the contracting states. We introduce a new and more diversified view on the Court’s practice, understanding it as perhaps less homogenous than has hitherto been thought.
AB - The established view in textbooks and legal commentary is that the Court’s case law should be viewed as a coherent whole. In this article, we ask whether European human rights law is as unified and European as is often presumed. Based on a citation network of all Chamber judgments from 1998–2018, we argue that the practice of the Court is to some extent split in different strands of case law, where the Court reuses particular factual and legal arguments against the same state without applying those as precedent against other states. We quantify this phenomenon and exemplify it qualitatively. Our data also suggests that the trend is declining. We explain this by the introduction of the Pilot Judgement procedure and an increasing bureaucratization of the Registry, aligning the citation practices of the Court’s five sections. The article situates itself within a broader debate about both legal pluralism and the principle of subsidiarity inherent to the European human rights system and proposals to bring the Court “closer” to the contracting states. We introduce a new and more diversified view on the Court’s practice, understanding it as perhaps less homogenous than has hitherto been thought.
U2 - 10.1017/glj.2022.29
DO - 10.1017/glj.2022.29
M3 - Journal article
VL - 23
SP - 465
EP - 492
JO - German Law Journal
JF - German Law Journal
SN - 2071-8322
IS - 4
ER -
ID: 274122673