urn_isbn_978-952-61-1770-6

can use arguments based on general legal principles to justify the interpretationof a legal rule. These are fundamental starting-points underlying the law or aspecific legal domain, such as the principles of fairness, good faith, equality, freedom,fair play and due process. 215 Respect for general principles of law has beenargued to be a necessary condition for the legitimacy of judicial decisions. 216 Suchgeneral principles include consistency, coherence, legal certainty, proportionality,predictability, as well as justice and objectivity. 217In order to be legitimate, a judicial decision must be based on moral principlesthat underpin human rights. 218 This provides a counterpart to formal legitimacy:now it is the content that counts when determining whether the judgmentis legitimate or not. Additionally, human rights are not criterial concepts whosemeaning is exhausted by their common usage across Contracting States. Theyare meant to express a moral commitment to objective principles of liberal democracy.It follows that the ECtHR does not exercise its judicial discretion in anillegitimate manner when applying, for example, a ‘living instrument’ interpretationbecause there are certain moral principles that underpin the Conventionrights. Furthermore, these moral principles should govern the interpretation ofthe Convention as a whole. 219JustificationTheories of legal reasoning ask: when is a legal conclusion sufficiently justified?Must it be based on solid grounds which cannot be questioned? The ultimatebasis of a conclusion is a relevant consideration in respect of all knowledge, notonly in respect of moral or legal reasoning. Justification is an attempt to achievecomprehensive, general legitimacy for the judgment. 220 It has also been emphasisedthat a judgment is justified and consequently legitimate on the basis of legalargumentation. 221 I would, however, stress that justification refers to the processby which the judge justifies the judgment to herself, while acceptability refers toconvincing the audience of the fact in relation to the judgment. 222 The argumentsgiven in order that the public accepts the judgment are slightly different to thosethe judge uses to justify it to herself.215Feteris 1999, at 8. Feteris also mentions that these general legal principles are laid down in theUniversal Declaration of Human Rights and in the European Convention on Human Rights (see Feteris1999, at 8, fn. 8).216Gribnau 2002, at 32.217Ibid., at 26.218Letsas 2009, at 59; Greer 2006, at 195–213.219Letsas 2009, at 40.220Paso 2014, at 239.221Dzehtsiarou 2011.222Virolainen – Martikainen 2010, at 25; Feteris 1999, at 1. Klami draws a rather similar distinction inrespect of argumentation and justification: he views argumentation as amounting to the reasons givento convince the relevant audience of the acceptability of the decision, while justification is the reasoningthat the decision-maker employs in order to convince herself of the correctness of the decision (Klami1997, at 13).45