Dothan on Judicial Deference and Emerging Consensus
Associate Professor Shai Dothan (iCourts) has a forthcoming article in the Chicago Journal of International Law.
The article is titled "Judicial Deference Allows European Consensus to Emerge".
This article argues that when the European Court of Human Rights (ECHR) defers to the policies of European countries, that deference may have unexpected beneficial side-effects. The ECHR defers to countries by using a doctrine called margin of appreciation. Margin of appreciation is usually presented as competing with the doctrine of emerging consensus, which is used by the ECHR to require all countries in Europe to improve their human rights practices at least to the level of protection granted by the majority of European countries. The article suggests—following a simple mathematical model known as the Condorcet Jury Theorem—that emerging consensus allows the ECHR to aggregate the wisdom of multiple countries and set good policies for all of Europe. Counter-intuitively, the margin of appreciation doctrine can aid the ECHR in achieving that goal by incentivizing countries to make their policies independently—a precondition for the Jury Theorem to work.