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 -