Interpretation of Fundamental Rights in a Multilevel Legal System

Fundamental rights provisions are known for their relatively vague and general formulation. As a result, judges dealing with these provisions are confronted with many and often controversial interpretative choices. These interpretative choices already present judges operating in a national context with difficulties, but that is even more so for European judges of the ECtHR and the CJEU. This volume analyses the use legal interpretation methods and principles in the fundamental rights case law of the ECtHR and the CJEU.
Auteur(s):
Hanneke Senden
Reeks:
Human Rights Research Series
Volume:
46
boek | verschenen | 1e editie
oktober 2011 | xii + 454 blz.

Paperback
€ 85,-


ISBN 9781780680279


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Fundamental rights provisions are known for their relatively vague and general formulation. As a result, judges dealing with these provisions are confronted with many and often controversial interpretative choices. These interpretative choices already present judges operating in a national context with difficulties, but that is even more so for European judges operating in a multilevel context.

The European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) are often criticized for delivering judgments that contain debatable choices and do not offer sufficient insight into the reasons which have led the courts to make these choices. Especially in a multilevel context where the cooperation of national authorities plays an important role as regards the effectiveness of the European courts, it is important that interpretation methods and principles are used in a transparent manner so that the reasons that justify a specific interpretative choice are clear.
This volume analyses the use of a selected number of interpretation methods and principles in the fundamental rights case law of the ECtHR and the CJEU. The use of teleological, comparative, evolutive and autonomous interpretation by the ECtHR and the CJEU are elaborately discussed on the basis of both legal theoretical literature and case law. The legal theoretical analysis provides the basis for various relevant questions, hypotheses and (analytical) suggestions, that are further studied in the subsequent case law analysis. This leads to a thorough overview of the role of these interpretation methods and principles and the possibilities for improvement.

This volume has been written as a PhD Thesis by Hanneke Senden (Institute for Public Law, University of Leiden; presently lawyer at Van Doorne, the Netherlands) in the framework of the research project ‘Judicial reasoning in fundamental rights cases – national and European perspectives’, supervised by professor J.H. Gerards and funded by the Netherlands Organisation of Scientific Research (NWO).


About the book
‘The present work contributes a very interesting analysis of the jurisprudence of the ECHR and the ECJ and can be recommended to [readers] not only interested in the content of judgments but also in the technical side of the decision-making process.’
Stefan Kieber in Newsletter Menschenrechte (NLMR) 1/2012, 69, 70


Hoofdstukken

Table of Contents (p. 0)

PART I – INTRODUCTION

Chapter 1. Introduction (p. 1)

Chapter 2. Context of legal argumentation in the European Court of Human Rights (p. 15)

Chapter 3. Context of legal argumentation in fundamental rights cases for the Court of Justice of the European Union (p. 25)

PART II – THEORETICAL ANALYSIS

Chapter 4. Interpretation methods and interpretative principles (p. 41)

Chapter 5. Teleological interpretation (p. 91)

Chapter 6. Comparative interpretation (p. 111)

Chapter 7. Principle of evolutive interpretation (p. 145)

Chapter 8. Principle of autonomous interpretation (p. 173)

PART III – CASE LAW ANALYSIS

European Court of Human Rights – General introduction (p. 191)

Chapter 9. Teleological interpretation in the case law of the ECtHR (p. 195)

Chapter 10. Comparative interpretation in the case law of the ECtHR (p. 223)

Chapter 11. Evolutive interpretation in the case law of the ECtHR (p. 267)

Chapter 12. Autonomous interpretation in the case law of the ECtHR (p. 289)

Chapter 13. Interpretation in the case law of the CJEU (p. 311)

PART IV – CONCLUSION

Chapter 14. Conclusion (p. 387)

Samenvatting (p. 405)

Bibliography (p. 415)

List of cases (p. 433)

Index (p. 443)

Curriculum vitae (p. 447)

Over de reeks

Human Rights Research Series

The Human Rights Research Series’ central research theme is the nature and meaning of international standards in the field of human rights, their application and promotion in the national legal order, their interplay with national standards, and the international supervision of such application. Anyone directly involved in the definition, study, implementation, monitoring, or enforcement of human rights will find this series an indispensable reference tool.

The Series is published together with the world famous Netherlands Network for Human Rights Research (formerly School of Human Rights Research), a joint effort by human rights researchers in the Netherlands.

Editorial Board: Prof. dr. Antoine Buyse (Utrecht University), Prof. dr. Fons Coomans (Maastricht University), Prof. dr. Yvonne Donders (Chair - University of Amsterdam), Dr. Antenor Hallo de Wolf (University of Groningen), Prof. dr. Kristin Henrard (Erasmus University Rotterdam), Prof. dr. Nicola Jägers (Tilburg University), Prof. Titia Loenen (Leiden University) Prof. dr. Janne Nijman (T.M.C. Asser Instituut) and Prof. dr. Brigit Toebes (University of Groningen).

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