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Contents Table of Cases xiii Introduction 1 1. Human Rights, Legality, and the ECHR 17 2. Autonomous Concepts, Conventionalism, and Judicial Discretion 37 3. Intentionalism, Textualism, and Evolutive Interpretation 58 4. Two Concepts of the Margin of Appreciation 80 5. Liberal Principles of Human Rights Interpretation 99 6. Public Morals, Consensus, and Rights Inflation: A Critique 120 Bibliography 131 Index 00 Contents Table of Cases xiii Introduction 1 1. Human Rights, Legality, and the ECHR 17 Introduction 17 Background to and a Very Brief History of Human Rights 18 No One-Size-Fits-All Theory of Human Rights 21 Human Rights as Conditions of Legitimacy 26 Human Rights, Legal Rights, and Interpretivism 29 Conclusion 36 2. Autonomous Concepts, Conventionalism, and Judicial Discretion 37 Introduction 37 The Emergence of Autonomous Concepts 40 Good-Faith Violations of the ECHR 43 A More Recent Example of an Autonomous Concept 46 Autonomous Concepts and Judicial Discretion 48 Need for Harmonization and Uniform Application? 49 Autonomous Concepts as Disagreement 51 Does Disagreement Entail Judicial Discretion? 53 Possible Choices 56 3. Intentionalism, Textualism, and Evolutive Interpretation 58 Introduction 58 Originalism in Constitutional Law 60 Golder v UK: VCLT and the Case of Unenumerated Rights 61 After Golder: the ECHR as a Living Instrument 65 The Failures of Originalism 68 The Object and Purpose of the ECHR 72 Evolutive Interpretation: Truth Not Current Consensus 74 4. Two Concepts of the Margin of Appreciation 80 Introduction 80 Theories of International Human Rights Law 81 The Substantive Concept of the Margin of Appreciation 84 The Structural Concept of the Margin of Appreciation 90 Consensus and Public Morals 92 5. Liberal Principles of Human Rights Interpretation 99 Introduction 99 Rights, Interests, and Reasons 99 Liberal Egalitarian Theories of Rights: Rawls and Dworkin 105 Rawls's Theory of Rights 105 Dworkin's Rights as Trumps 110 Liberal Egalitarian Principles for the Interpretation of the Limitation Clauses 117 6. Public Morals, Consensus, and Rights Inflation: A Critique 120 Introduction 120 Public Morals and the Moralistic Preferences of the Majority 120 Consensus, Piecemeal Evolution, and Legality 123 Rights Inflation: Hatton and the Right to Sleep Well 126 Bibliography 131 Index 00
Library of Congress Subject Headings for this publication:
Convention for the Protection of Human Rights and Fundamental Freedoms (1950).
Human rights -- Europe -- Interpretation and construction.