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2 The Current Story ofLegitimacy2.1 REASONS FOR LEGITIMACY QUESTIONS: THE ECtHR’SMETHODS OF INTERPRETATION AND ARGUMENTATIONThe ECtHR has been criticised by many on account of its increasingly far-reachinginterpretations of Convention provisions. Some of these criticisms relate toissues of state sovereignty and moral or cultural sensitivities at the national level.The Convention system has also been criticised on the basis of the institutionalaspects of the ECtHR. 62 This study, however, focuses on criticism to which theECtHR can itself react, in terms of the interpretation and argumentation used inits judgments. Institutional aspects, such as the amount of personnel and financialcapacity, are in the hands of others. This section outlines the scope of criticismdirected towards the ECtHR’s methods of interpretation and argumentation,which are linked to discussion of its legitimacy. Consequently, current discussionof judicial legitimacy is introduced and discussed in relation to the ECtHR.The main methods of interpretation used in relation to the ConventionContinental methods of interpretation are rather well-developed. The most wellknownand frequently used methods are as follows: grammatical/literal, 63 historical,systematic, genetic, teleological, and interpretation based on analogy or a contrario.If a judge refers to the meaning of a term in everyday language or technicallanguage, she uses grammatical (or literal) interpretation. If the judge refers to thehistory of the legal rule, she uses historical interpretation. In systematic interpretation,the chosen interpretation is achieved by reference to the position of the legalrule in the legal system and its relation to other norms, goals and principles.Genetic interpretation occurs when the judge refers to the intention of the legislator.Teleological interpretation involves referring to the goal or purpose of the legalrule. Interpretation by analogy involves deciding that that a particular rule whichapplies to situation A also applies to situation B because it resembles situation A inrelevant respects. Using a contrario interpretation means that the judge decides thereverse, by holding that a certain rule does not apply to situation A, because it does62Even though criticism has been provoked, the general stance has, however, been to laud the importanceof the Convention and the bulk of the ECtHR’s decisions as of significant human rights value(see e.g. Williams 2013, at 1158).63Common law also recognises three traditional approaches to statutory interpretation: ‘literal rule’,‘golden rule’ and the ‘mischief rule’, see e.g. Zweigert – Kötz 1998, at 265–267; Cook et al. 2001.25
not resemble situation B for which the rule was intended. 64The ECtHR does not, however, use these techniques when interpreting theprovisions of the Convention. Through its case law, it has developed severalmethods of interpretation to enhance the rights provided by the Convention. 65These are as follows: (1) the ‘living-instrument’ approach; (2) the theory of ‘autonomousconcepts’; (3) the ‘practical and effective’ approach; and (4) the ‘commonground’ method. All these methods reject the idea that rights provided underthe Convention must be interpreted in the light of the meaning attributed tothem back in the 1950s. Article 1 of the Convention has been the starting-point forthe ECtHR’s interpretations. It provides as follows: ‘The High Contracting Partiesshall secure to everyone within their jurisdiction the rights and freedoms definedin Section 1 of this Convention.’ This is supplemented by the Vienna Conventionon the Law of Treaties (VCLT) which basically states that international treatiesshould be interpreted according to their object and purpose. 66 It is worth notingthat the ECtHR’s method of interpretation can overall be described as creativeand dynamic. It long ago abandoned strict textual interpretation and has adoptedspecial methods of interpretation. 67Certain underlying principles permeate the Convention and its case law. Theseprinciples are fundamental to substantive Convention law and include subsidiarity,democracy, legal certainty, proportionality and the margin of appreciationdoctrine. They affect the interpretation by guiding it in a certain direction but arenot interpretation methods in the strict sense. 68‘Living instrument’ interpretation is also known as ‘dynamic or evolutive’ interpretation.69 The ECtHR stressed as long ago as the 1960s that the Conventionmust be interpreted in a ‘dynamic’ way, in the sense that interpretation must takeaccount of developments in social and political attitudes and cannot limit itself toconceptions prevalent in the period when it was drafted or entered into force. 70The ECtHR tends to stress that ‘the Convention is a living instrument which mustbe interpreted in the light of the present-day conditions’. 71 This is in line withthe object and purpose requirement derived from Article 31(1) of the VCLT. TheConvention clearly lends itself to evolutive interpretation and there is no reasonto think that it should not develop over time. 7264For more on this, see e.g. Feteris 1999, at 7–8; Wróblewski 1992, at 96–107; Aarnio 1987, at 101–107;Alexy 1989, at 234–250. On interpretation methods in common law, see Cook et al. 2001, at 206–270.65See more e.g. Letsas 2009; Letsas 2010; Gerards 2009, at 430; Gerards 2008, at 659–667; Matscher 1993;Bates 2010, at 319–358; Pitea 2014. Furthermore, the concept of interpretation having a rights-creatingfunction has been mentioned by Helen Keller and Alec Stone Sweet (Keller – Stone Sweet 2008, at 6).66See Articles 31 to 33 of the VCLT (UN Doc A/CONF.39/27; 1155 UNTS 331). For more, see Villiger2005.67Christoffersen 2009, at 49–50.68See Leach 2011, at 159–177. Cf. Harris et al. 2014, at 7–20, where the principle of proportionality, themargin of appreciation doctrine and the fourth instance doctrine are listed as interpretative methodsin respect of the Convention.69See Letsas 2013, at 108 fn. 4.70Wemhoff v. Germany (1968), para. 8; White – Ovey 2010, at 45–47.71Tyrer v. The United Kingdom (1<strong>978</strong>), para. 31.72Christoffersen 2009, at 54–55; Prebensen 2000, at 1124–1125.26
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Page 8 and 9: AcknowledgementsWhen I began my doc
Page 10 and 11: Contents1 INTRODUCTION.............
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cision is manifestly arbitrary’.
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Article 6. More significantly, in t
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such as the European Social Charter
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complished its judicial legitimacy,
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the systems and reasoning related t
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86Bossuyt, Marc, ‘The Court of St
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Table of CasesTHE EUROPEAN COURT OF
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100Evans v. The United Kingdom, App
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Article IIMAIJA PITKÄNEN: FAIR AND
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Fair and Balanced Positive Obligati
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Article IIIIMAIJA DAHLBERG: ‘THE
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Forthcoming in the Finnish Yearbook
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SHOULD SOCIAL RIGHTS BE INCLUDED IN
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Maija DahlbergSocial Charter, the C
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Maija DahlbergThere are strong argu
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Maija Dahlbergenjoying the status o
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Maija DahlbergLangford, M. (2008)
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‘ . . . IT IS NOT ITS TASK TO ACT
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2014] The ECtHR as a Court of Fourt
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