Ebook A Constitutionalist Approach To The European Convention On Human Rights The Legitimacy of Evolutive and Static Interpretation 1St Edition Lisa Sonnleitner Online PDF All Chapter

A Constitutionalist Approach to the
European Convention on Human Rights

The Legitimacy of Evolutive and Static
Interpretation 1st Edition Lisa
Sonnleitner
Visit to download the full and correct content document:
https://ebookmeta.com/product/a-constitutionalist-approach-to-the-european-conventi
on-on-human-rights-the-legitimacy-of-evolutive-and-static-interpretation-1st-edition-lis
a-sonnleitner/
More products digital (pdf, epub, mobi) instant
download maybe you interests ...
The Inter State Application under the European

Convention on Human Rights Between Collective
Enforcement of Human Rights and International Dispute
Settlement 1st Edition Isabella Risini
https://ebookmeta.com/product/the-inter-state-application-under-
the-european-convention-on-human-rights-between-collective-
enforcement-of-human-rights-and-international-dispute-
settlement-1st-edition-isabella-risini/
Non Refoulement under the European Convention on Human

Rights and the un Convention Against Torture The
Assessment of Individual Complaints by the European
Court of Human Rights under Article 3 ECHR and the
United Nations Committee Against Tortu 1st Edition
https://ebookmeta.com/product/non-refoulement-under-the-european-
convention-on-human-rights-and-the-un-convention-against-torture-
Fanny De Weck
the-assessment-of-individual-complaints-by-the-european-court-of-
human-rights-under-article-3-echr-a/
International Disability Law A Practical Approach to

the United Nations Convention on the Rights of Persons
with Disabilities 1st Edition Coomara Pyaneandee
https://ebookmeta.com/product/international-disability-law-a-
practical-approach-to-the-united-nations-convention-on-the-
rights-of-persons-with-disabilities-1st-edition-coomara-
pyaneandee/
The Istanbul Convention Domestic Violence and Human

Rights 1st Edition Ronagh Mcquigg
https://ebookmeta.com/product/the-istanbul-convention-domestic-
violence-and-human-rights-1st-edition-ronagh-mcquigg/
A Transnational Human Rights Approach to Human
Trafficking Empowering the Powerless 1st Edition Yoon
Jin Shin
https://ebookmeta.com/product/a-transnational-human-rights-
approach-to-human-trafficking-empowering-the-powerless-1st-
edition-yoon-jin-shin/
Religion, Human Rights, and the Workplace: Judicial

Balancing in the United States Federal Courts and the
European Court of Human Rights (ICLARS Series on Law
and Religion) 1st Edition Gregory Mose
https://ebookmeta.com/product/religion-human-rights-and-the-
workplace-judicial-balancing-in-the-united-states-federal-courts-
and-the-european-court-of-human-rights-iclars-series-on-law-and-
religion-1st-edition-gregory-mose/
The United Nations Convention on the Rights of the

Child Taking Stock after 25 Years and Looking Ahead 1st
Edition Ton Liefaard
https://ebookmeta.com/product/the-united-nations-convention-on-
the-rights-of-the-child-taking-stock-after-25-years-and-looking-
ahead-1st-edition-ton-liefaard/
Whistleblower Protection by the Council of Europe the

European Court of Human Rights and the European Union
An Emerging Consensus 1st Edition Hava Charlotte Lan
Yurttagül
https://ebookmeta.com/product/whistleblower-protection-by-the-
council-of-europe-the-european-court-of-human-rights-and-the-
european-union-an-emerging-consensus-1st-edition-hava-charlotte-
lan-yurttagul/
On the Significance of Religion for Human Rights 1st

Edition Pauline Kollontai
https://ebookmeta.com/product/on-the-significance-of-religion-
for-human-rights-1st-edition-pauline-kollontai/
A CONSTITUTIONALIST APPROACH
TO THE EUROPEAN CONVENTION
ON HUMAN RIGHTS
This book presents a new constitutional argument for the legitimacy of evolu-
tive interpretation of the ECHR. It constructs a model, in which evolutive and
static constitutional principles are balanced with each other.
The author argues that there are three possible interpretive approaches in
timesensitive interpretations of the ECHR, but that only one of them is justifi-
able by reference to the constitutional principles of the ECHR in every single
case.
The ECHR’s constitutional principles either require an evolutive or static
interpretation or they do not establish a preference relation at all, which leads
to a margin of appreciation of the member states in the interpretation of the
Convention. The balancing model requires the determination of the weights of
the competing evolutive and static constitutional principles. For this purpose,
the author defines weighting factors for determining the importance of evolutive
or static interpretation in a concrete case.
Hart Studies in Constitutional Theory: Volume 3

Hart Studies in Constitutional Theory
Series Editors
Charles Barzun, University of Virginia, USA
Maartje De Visser, Singapore Management University
Matthias Klatt, University of Graz, Austria
The Hart Studies in Constitutional Theory series publishes thought-provoking
works of scholarship addressing diverse aspects of constitutional theory in a
concise and crystalline manner. Authors writing for this series cover a wide
range of perspectives, methods, and regions, to enhance our understanding of
constitutions as central institutions of modern public life. Taken together, the
books in this series aim to challenge established wisdom and advance original
ideas.
This series is a natural home for books interrogating the concepts and struc-
tures of constitutions on the national, the supranational and the international
level. Its guiding philosophy is that the task of constitutional theory is not only
to delineate the basic structures of government and to protect human rights, but
also more broadly to offer methods for grappling with the social, political, and
economic problems societies face today.
The series is open to theoretical, normative, analytical, empirical and
comparative approaches, stemming from legal studies as well as from political
philosophy and political science. In its ambition to become a global forum for
debate about constitutional theory, the series editors welcome submissions for
monographs as well as edited volumes from all parts of the world.
Recent titles in this series:
Proportionality and Facts in Constitutional Adjudication
by Anne Carter
The Methodology of Constitutional Theory
edited by Dimitrios Kyritsis and Stuart Lakin
A Constitutionalist Approach to the European Convention
on Human Rights: The Legitimacy of Evolutive and Static Interpretation
by Lisa Sonnleitner
A Constitutionalist
Approach to the
European Convention
on Human Rights
The Legitimacy of Evolutive
and Static Interpretation
Lisa Sonnleitner
HART PUBLISHING
Bloomsbury Publishing Plc
Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK
1385 Broadway, New York, NY 10018, USA
29 Earlsfort Terrace, Dublin 2, Ireland
HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are
trademarks of Bloomsbury Publishing Plc
First published in Great Britain 2022
Copyright © Lisa Sonnleitner, 2022
Lisa Sonnleitner has asserted her right under the Copyright, Designs and
Patents Act 1988 to be identified as Author of this work.
All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any
means, electronic or mechanical, including photocopying, recording, or any information storage
or retrieval system, without prior permission in writing from the publishers.
While every care has been taken to ensure the accuracy of this work, no responsibility for
loss or damage occasioned to any person acting or refraining from action as a result of any
statement in it can be accepted by the authors, editors or publishers.
All UK Government legislation and other public sector information used in the work is
Crown Copyright ©. All House of Lords and House of Commons information used in
the work is Parliamentary Copyright ©. This information is reused under the terms
of the Open Government Licence v3.0 (http://www.nationalarchives.gov.uk/doc/
open-government-licence/version/3) except where otherwise stated.
All Eur-lex material used in the work is © European Union,
http://eur-lex.europa.eu/, 1998–2022.
A catalogue record for this book is available from the British Library.
A catalogue record for this book is available from the Library of Congress.
Library of Congress Control Number: 2021055611
ISBN: HB: 978-1-50994-687-7
ePDF: 978-1-50994-689-1
ePub: 978-1-50994-688-4
Typeset by Compuscript Ltd, Shannon
Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon CR0 4YY
To find out more about our authors and books visit www.hartpublishing.co.uk.
Here you will find extracts, author information, details of forthcoming events
and the option to sign up for our newsletters.
Foreword
In our times of ever-growing constitutionalisation, constitutional structures are
no longer limited to the legal province of the nation-state. They also exist in
international and supranational spheres. The European Convention on Human
Rights, on which the present monograph focusses, is one good example. Despite
differences in both structure and detail, the European Union and the various
regional systems for protecting human rights around the world also display
characteristics of constitutional arenas. The discipline of constitutional theory
accordingly has acute relevance in relation to these realms.
We are delighted that Dr Sonnleitner’s book allows us to signal this inter-
national scope of our series early on. Theoretical analyses of constitutional
structures beyond the state are at the heart of our series just as much as research
on the classical canon of state-centred constitutions.
This book provides an illuminating discussion of one of the most controversial
interpretive techniques deployed by the European Court of Human Rights, viz.
evolutive interpretation. At its core, it queries to what extent the interpretation of
rights is either open or resilient to societal change. To answer this question, the
author develops a sophisticated theoretical argument that integrates evolutive inter-
pretation and its counterpart, static interpretation. By engaging with the temporal
dimension of rights interpretation, this monograph is exemplary in bridging consti-
tutional theory with international law and the theory of legal argumentation.
In its ambition to provide normative guidance, Dr Sonnleitner’s book reflects
our series’ intention of illuminating the practical impact of constitutional
theory. It does not merely provide a theoretical analysis, but also draws conclu-
sions as to the practical consequences thereof. Dr Sonnleitner’s book is, just as
we hope this series in its entirety will prove to be, built upon the insight that
legitimate constitutional practices, which are not just incidentally legitimate,
must be guided by a deeper understanding of the relations between norms, deci-
sions, institutions, and methods. We are dependent upon this valuable function
of theoretical research to provide systematic orientation, all the more in our
modern times that are characterised by chronic information overload. Only in
this way will we be able to in overcome the dictate of mere routines, the reign
of unreflected day-to-day practices, and the fumbling around based on trial and
error. There is nothing so practical as a good theory.
Maartje de Visser
Charles Barzun
Matthias Klatt
Singapore/Charlottesville/Graz, January 2022
Contents
Foreword��v
List of Abbreviations�� xi
Table of Cases�� xiii
Legal Documents and Reports��xvii
Introduction��1
PART I
FUNDAMENTALS
1. On the Concepts of Law and Human Rights��13
I. The Dual Nature of Law................................................................13
II. The Concept of Human Rights.......................................................14
2. A New Concept of Evolutive and Static Interpretation��17

I. Evolutive Interpretation Within a Normative Theory of
Interpretation.................................................................................18
II. Evolutive Interpretation as an Element of the Time
Dimension of Interpretation...........................................................21
III. Static Interpretation as the Parameter for
Evolutive Interpretation..................................................................23
3. The Legitimacy of Evolutive Interpretation Revisited��28

I. Evolutive Interpretation and the ECHR...........................................30
A. European Consensus��30
B. Moral Reading and States’ Commitment��35
C. Rights Principle��39
II. Evolutive Interpretation and the Vienna Convention on
the Law of Treaties.........................................................................41
A. Parties’ Intentions��42
B. Object and Purpose��47
C. Other Rules of International Law Applicable in
the Relations between Parties��51
D. Effectiveness��54
viii Contents
III. Evolutive Interpretation and General Principles of

International Law...........................................................................56
A. Objectivity of the Law��57
B. Human Dignity��58
C. Pro Persona Interpretation��60
4. The Criticism against Evolutive Interpretation Revisited��62

I. Democratic Legitimacy of Evolutive Interpretation.........................63
A. The Conceptual Problem of the Critique��65
B. The Problematic Positioning of Evolutive
Interpretation��68
II. Sovereignty.....................................................................................71
A. Evolutive Interpretation as the Creation of
New Obligations��72
B. The Contestable Concept of Validity��75
III. Rule of Law....................................................................................77
PART II
THE ECHR CONSTITUTION
5. The Argument of Constitutionalism��85
I. Constitutionalism in the International Realm..................................85
II. Cosmopolitan Constitutionalism....................................................90
III. Deliberative or Discursive Constitutionalism...................................91
6. The Constitutional Nature of the ECHR��94

I. The Constitutional Status of the ECHR’s Judicial
Review Mechanism.........................................................................95
II. Locating the ECHR in the International
Constitutionalism Debate...............................................................99
7. Three Basic Constitutional Principles of the ECHR�� 102

I. The Three Pillars of the Council of Europe
as Constitutional Principles.......................................................... 103
A. Rule of Law�� 104
B. Democracy�� 107
C. Human Rights�� 111
II. The Ideal and Real Dimension in the ECHR................................. 112
III. Time Dimension of Interpretation and
the Dual Nature of the ECHR...................................................... 113
Contents ix
PART III
BALANCED LEGITIMACY MODEL
8. Setting the Scene for Balancing at the Interpretation Stage�� 119
I. The Distinction between Rules and Principles.............................. 119
II. Connecting Static and Evolutive Interpretation to
Formal and Material Principles................................................... 121
III. Balancing in the Different Stages of Law Application................... 122
IV. Balancing of Interpretive Canons................................................. 124
A. Alexy’s Model of a Preference Relation for Canons�� 124
B. Klatt’s ‘Balancing-dependent Subsumption’�� 125
C. Wróblewski’s ‘Second-level Directive of Interpretation’�� 126
D. Interim Conclusions�� 128
9. The Balancing Model for Evolutive and Static Interpretation�� 129

I. Basic Ideas on the Balancing Model............................................. 129
II. Critical Aspects of Balancing in Human Rights
Interpretation............................................................................. 131
III. Internal Structure of the Balancing Model................................... 133
IV. Weight Formula.......................................................................... 136
10. External Justification�� 139

I. How to Accord Weights in the ECHR?........................................ 140
II. Weighting Rules in the Time Dimension of Interpretation............ 142
A. Weighting Factors for the Intensity of the
Interference With Static Principles�� 142
B. Weighting Factors for the Importance of Evolutive
Principles�� 144
C. The Weight of Consensus�� 148
III. The Epistemic Reliability of the Underlying Premises................... 149
PART IV
THE BALANCED LEGITIMACY MODEL APPLIED
11. The Right to Divorce�� 155
I. Facts of the Case.......................................................................... 155
II. Time Dimension of Interpretation................................................ 156
III. The ECtHR’s Reasoning............................................................... 157
IV. The Balancing of Static and Evolutive Interpretation..................... 158
V. The Legitimacy of the Evolutive Approach to
Interpretation............................................................................... 164
x Contents
12. The Right to Assisted Suicide�� 165

I. Facts of the Case......................................................................... 165
II. Time Dimension of Interpretation............................................... 166
III. The ECtHR’s Reasoning............................................................. 167
IV. The Balancing of Static and Evolutive Interpretation.................... 169
V. The Legitimacy of the Static Approach to Interpretation.............. 172
13. The Right to Preservation of the Environment�� 173

I. Facts of the Case......................................................................... 173
II. Time Dimension of Interpretation............................................... 175
III. The ECtHR’s Reasoning............................................................. 177
IV. The Balancing of Static and Evolutive Interpretation.................... 178
V. A Stalemate Case........................................................................ 181
Conclusion�� 182
Bibliography�� 185
Index�� 193
List of Abbreviations
Art Article
CETS, ETS Council of Europe Treaty Series
CJEU Court of Justice of the European Union
CM, Committee Committee of Ministers (of the Council of
Europe)
CoE Council of Europe
ECHR, Convention Convention for the Protection of Human Rights
and Fundamental Freedoms/European Convention
on Human Rights
EComHR, Commission European Commission of Human Rights
ECtHR, Court European Court of Human Rights
GC Grand Chamber of the European Court of Human
Rights
HUDOC Database for the case law of the European Court
of Human Rights and the former European
Commission of Human Rights
ICJ International Court of Justice
ILC International Law Commission
MND motor neurone disease
PACE Parliamentary Assembly of the Council of Europe
UDHR Universal Declaration of Human Rights
UN United Nations
UNTS United Nations Treaty Series
VCLT Vienna Convention on the Law of Treaties
Table of Cases
A, B and C v Ireland [GC] EHRR 2010-VI .............................. 30, 141, 160, 166
Aegean Sea Continental Shelf (1978) ICJ Reports 1978 .................................. 44
Airey v Ireland Series A no 32 (1979) ...................................................... 54, 56
Akpinar and Altun v Turkey (2007) no 56760/00, unreported ...................... 110
Al-Dulimi and Montana Management Inc v Switzerland
[GC] EHRR 2016 ................................................................................. 107
Amann v Switzerland [GC] (2000) EHRR 2000-II ....................................... 106
Amuur v France (1996) EHRR 1996-III ....................................................... 106
Austria v Italy (1961) no 788/60, unreported ................................................. 99
B v France Series A no 232-C (1992) ..................................................... 148, 151
Babiarz v Poland (2017) no 1955/10, unreported...................... 143, 150, 154–64
Baka v Hungary [GC] (2016) EHRR 2016 ................................................... 106
Bayatyan v Armenia [GC] EHRR 2011-IV ................ 3, 31–32, 114–15, 146, 148
Beian v Romania EHRR 2007-V ................................................................. 106
Bélané Nagy v Hungary [GC] EHRR 2016.................................................. 106
Biao v Denmark EHRR 2016 ...................................................................... 141
Broniowski v Poland [GC] EHRR 2005-IX ................................................. 106
Castells v Spain Series A no 236 (1992) ....................................................... 109
Chapman v UK [GC] (2001) EHRR 2001-I ................................................. 143
Christine Goodwin v UK [GC] EHRR 2002-VI .................... 1–2, 29, 31, 36, 54,
58–59, 114–15,
145–46, 150–51
Connors v UK (2004) no 66746/01, unreported............................................ 141
Cossey v UK (1990) Series A no 184 (1990) ...................................... 31, 58, 150
DH and Others v the Czech Republic [GC] EHRR 2007-IV......................... 146
Delcourt v Belgium Series A no 11 (1970).................................................... 109
Demir and Baykara v Turkey [GC] EHRR 2008-V ............................... 114, 147
Dispute regarding navigational and related rights
(Costa Rica v Nicaragua) ICJ Reports 2009 ......................................... 7, 74
Dubetska and Others v Ukraine (2011) no 30499/03, unreported ................. 176
Dubská and Krejzová v the Czech Republic [GC] EHRR 2016.............. 141, 144
Dudgeon v UK Series A no 45 (1981) .......................................................... 141
Engel and Others v the Netherlands Series A no 22 (1976) ........................... 106
Evans v UK [GC] EHRR 2007-I .................................................................. 141
F v Switzerland Series A no 128 (1987) ........................................................ 161
Fadeyeva v Russia EHRR 2005-IV .............................................................. 176
Case 43/76 Gabrielle Defrenne v Société Anonyme Belge de Navigation
Aérienne Sabena [1976] ECR 1976-00455, European Court of Justice....... 57
xiv Table of Cases
Gäfgen v Germany [GC] EHRR 2010-IV .................................................... 106

Golder v UK Series A no 18 (1975)............................................ 1, 3, 72–73, 105
Gorzelik and Others v Poland [GC] EHRR 2004-I..................................109–10
Gross v Switzerland [GC] EHRR 2014-IV...................................... 166–67, 170
Haas v Switzerland EHRR 2011-I .................................................. 166–67, 170
Handyside v UK Series A no 24 (1976) ...................................................109–10
Hassan v UK [GC] EHRR 2014-VI ............................................................... 34
Hatton and Others v UK [GC] EHRR 2003-VIII .................................. 141, 144
Hirsi Jamaa and Others v Italy EHRR 2012-II........................................54, 147
Hirst v UK (No 2) [GC] EHRR 2005-IX ................................... 2, 4, 66, 98, 143
I v UK [GC] (2002) no 25680/94, unreported ................................34–35, 58–59,
114, 143, 145–46
Iatridis v Greece (1999) EHRR 1999-II ........................................................ 106
Identoba and Others v Georgia (2015) no 73235/12, unreported .................. 146
Ilaşcu and Others v Moldova and Russia [GC] EHRR 2004-VII .............106–07
Ivan Atanasov v Bulgaria (2010) no 12853/03, unreported ....... 154, 173, 175–81
Jansen v Norway (2018) no 2822/16, unreported ......................................... 141
Johnston and Others v Ireland Series A no 112 (1986) ........... 143, 150, 157, 159
K-H W v Germany [GC] EHRR 2001-II ..................................................... 145
Karácsony and Others v Hungary [GC] EHRR 2016 ............................ 108, 110
Khamtokhu and Aksenchik v Russia [GC] EHRR 2017........................... 50, 60
Khlaifia and Others v Italy [GC] EHRR 2016................................................ 54
Kjeldsen, Busk Madsen and Pedersen v Denmark Series A no 23 (1976) ....... 108
Klass and Others v Germany Series A no 28 (1978) ..................................... 111
Koch v Germany (2012) no 497/09, unreported .................................... 167, 170
Kokkinakis v Greece Series A no 260-A (1993) ............................................ 110
Kudla v Poland [GC] (2000) EHRR 2000-XI ............................................... 110
Kyrtatos v Greece EHRR 2003-VI............................................. 176–77, 179–80
L v Lithuania EHRR 2007-IV ..................................................................... 114
Lambert and Others v France [GC] EHRR 2015-III ..................................... 167
Legal Consequences for States of the continued presence of South Africa
in Namibia (South West Africa) notwithstanding Security Council
Resolution 276, ICJ Reports 1971 ........................................................ 7, 43
Leon and Agnieszka Kania v Poland (2009) no 12605/03, unreported ........... 176
Leyla Sahin v Turkey [GC] EHRR 2005-XI ................................................. 110
Lingens v Austria Series A no 103 (1986)................................................109–10
Loizidou v Turkey (Preliminary Objections) Series A no 310 (1995) ......... 95, 99
Lupeni Greek Catholic Parish and Others v Romania [GC] EHRR 2016 ...... 106
MC v Bulgaria EHRR 2003-XII ......................................................................2
Magyar Helsinki Bizottsag v Hungary [GC] EHRR 2016 ............... 3, 30, 51, 54
Mahmut Kaya v Turkey (2000) (2000) EHRR 2000-III ................................. 166
Mamatkulov and Askarov v Turkey [GC] EHRR 2005-I, [2005] .................... 99
Marckx v Belgium Series A no 31 (1979) ......................... 1–2, 24, 31, 36, 57–59,
63, 77, 98, 146, 150
Table of Cases xv
Mathieu-Mohin and Clerfayt v Belgium Series A no 113 (1987) ................... 108

McCann and Others v UK [GC] Series A no 324 (1997) ............................... 166
Metropolitan Church of Bessarabia and Others v Moldova
EHRR 2001-XII .................................................................................... 110
Mosley v UK (2011) no 48009/08, unreported ............................................. 141
Mursic v Croatia EHRR 2016....................................................................... 74
Opuz v Turkey EHRR 2009-III .......................................................................2
Othman (Abu Qatada) v UK EHRR 2012-I................................................. 106
PP v Poland (2008) no 8677/03, unreported ................................................. 107
Pretty v UK EHRR 2002-III ........................................ 147, 154, 165–66, 168–72
Rantsev v Cyprus and Russia [GC] EHRR 2010-I ....................................... 114
Rees v UK Series A no 106 (1986) ..........................................................31, 150
Refah Partisi (The Welfare Party) and Others v Turkey
[GC] EHRR 2003-II .............................................................................. 110
SS Wimbledon (1923) Series A: Collection of Judgments (1923–1930)
Permanent Court of International Justice ................................................ 74
Schalk und Kopf v Austria EHRR 2010-IV 409 .............................1–2, 141, 144
Scoppola v Italy (No 2) (2009) no 10249/03, unreported .............................. 143
Selmouni v France [GC] (1999) EHRR 1999-V ................................................2
Sergey Zolotukhin v Russia [GC] EHRR 2009-I ................................... 114, 147
Sheffield and Horsham v UK [GC] (1998) EHRR 1998-V......31, 34, 58, 148, 150
Siliadin v France EHRR 2005-VII ............................................................... 110
Soering v UK Series A no 161 (1989) ......................................... 31, 99, 106, 143
Sommerfeld v Germany [GC] EHRR 2003-VIII .......................................... 141
Stankov and The United Macedonian Organisation Ilinden v Bulgaria
EHRR 2001-IX ..................................................................................... 109
Streletz, Kessler and Krenz v Germany [GC] EHRR 2001-II ........................ 145
Sylvester v Austria (2003) nos 36812/97 and 40104/98 .................................. 107
Taskin and Others v Turkey EHRR 2004-X ................................................ 176
Tyrer v UK Series A no 26 (1978) .......................... 2–3, 17, 62–63, 113, 145, 148
Tysiac v Poland EHRR 2007-I .................................................................... 107
United Communist Party of Turkey and Others v Turkey [GC] (1998)
EHRR 1998-I ................................................................................. 108, 110
Winterwerp v The Netherlands Series A no 33 (1979) .................................. 106
YY v Turkey EHRR 2015-I.................................................................. 114, 147
Young, James and Webster v UK Series A no 44 (1982) ....................................3
Yumak and Sadak v Turkey [GC] EHRR 2008-III ..................................108–09
Zdanoka v Latvia [GC] EHRR 2006-IV ...................................................... 108
Legal Documents and Reports
CDL-AD(2016)007, Study No 711/2013, Rule of Law Checklist 18 March 2016
(European Commission for Democracy Through Law).
CM(2008)170, The Council of Europe and the Rule of Law – An overview
21 November 2008 (Committee of Ministers of the Council of Europe).
Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 4 November 1950) (Council of Europe).
Doc 8560, Future action to be taken by the Council of Europe in the field
of environmental protection, Report, 5 October 1999 (Council of Europe
Parliamentary Assembly).
Doc 9791, Environment and human rights, Report, 16 April 2003 (Council of
Europe Parliamentary Assembly).
Document A/6309/Rev.1: Reports of the International Law Commission on
the second part of its seventeenth session and on its eighteenth session 1966
(International Law Commission).
High Level Conference on the Future of the European Court of Human Rights,
Brighton Declaration (Brighton, 2012, Council of Europe).
Protocol No 6 to the Convention for the Protection of Human Rights and
Fundamental Freedoms concerning the Abolition of the Death Penalty
(Strasbourg, 28 April 1983) ETS No 114.
Fundamental Freedoms (Strasbourg, 22 November 1984) ETS No 117.
Fundamental Freedoms, restructuring the control machinery established thereby
(Strasbourg, 11 May 1994) ETS No 155.
Fundamental Freedoms concerning the Abolition of the Death Penalty in all
circumstances (Strasbourg, 3 May 2003) ETS No 187.
Protocol No 15 amending the Convention for the Protection of Human Rights
and Fundamental Freedoms (Strasbourg, 24 June 2013) CETS No 213.
Protocol to the Convention for the Protection of Human Rights and Fundamental
Freedoms (Strasbourg, 20 March 1953) ETS No 009.
xviii Legal Documents and Reports
Report (A/61/10) of the International Law Commission on its 58th session

(2006) (United Nations General Assembly).
Report (A/73/10) of the International Law Commission (Seventieth Session
(30 April–1 June and 2 July 2018) International Law Commission).
Report at the fourth International Colloquy about the European Convention on
Human Rights (Rome, 5–8 November 1975) H/Coll (75)2.
Resolution 800 (1983), Principles of Democracy (Council of Europe
Parliamentary Assembly).
Resolution 1594 (2007), The principle of the Rule of Law 2007 (Council of
Europe Parliamentary Assembly).
Resolution 1746 (2010), Democracy in Europe: Crisis and Perspectives (Council
of Europe Parliamentary Assembly).
Statute of the Council of Europe (London, 5 May 1949) ETS No 1.
Third Report on the Law of Treaties Document A/CN.4/167, Vol II (1964)
(Humphrey Waldock, Special Rapporteur, International Law Commission).
Third Summit of Heads of State and Government of the Council of Europe,
Warsaw Declaration (Warsaw, 2005, Council of Europe).
UN General Assembly Resolution 217 A (III) Universal Declaration of Human
Rights (Paris, 10 December 1948).
Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) UNTS
Vol 1155.
Introduction
S
OCIETIES, MORAL CONCEPTS and ideas about what human rights people
should have change in the course of time. The term ‘family life’ in Article 8
of the European Convention on Human Rights (ECHR, ‘the Convention’)
illustrates the diverse ways in which modern society tests the practicability of
human rights norms. In 1950 the drafters of the Convention probably did not
think of applicants claiming to grant equal legal status to children born in and
out of wedlock,1 to facilitate change of gender in the birth register2 or to rec-
ognise homosexual couples as families.3 Yet, these matters have become press-
ing legal questions in many families since the entry into force of the ECHR.
Such societal developments pose a particular challenge to the interpretation of
human rights treaties such as the ECHR, which were negotiated decades ago
as a bulwark against totalitarianism.4 Should the ECHR be responsive to those
changes in order to maintain an effective level of human rights protection? And
if so, is it for the European Court of Human Rights (ECtHR) to determine the
pace of this adaptation process through its interpretation of the Convention
text? These are the central questions that triggered this investigation.
How the ECtHR should approach the interpretation of the ECHR was an
open question from the entry into force of the Convention.5 Although Article 32
ECHR transfers all authority in interpretive matters to the ECtHR, the text
remains silent on the concrete interpretive approach that the Court should
follow.6 There is no reference to specific interpretive methods or to the meth-
ods of treaty interpretation in international law as established by the Vienna
Convention on the Law of Treaties (VCLT).7
It took the Court until 1975 to clarify that it perceived itself to be bound by
the interpretive rules of Articles 31–33 VCLT.8 At about the same time, Max
Sørensen, former President of the European Commission of Human Rights,
1 Marckx v Belgium Series A no 31 (1979).

2 Christine Goodwin v UK [GC] EHRR 2002-VI.
3 Schalk und Kopf v Austria EHRR 2010-IV 409.
4 Ed Bates, The Evolution of the European Convention on Human Rights: From Its Inception
to the Creation of a Permanent Court of Human Rights (Oxford, Oxford University Press, 2010)
3 and 360.
5 ibid 304ff.
6 Art 32 ECHR extends the Court’s jurisdiction ‘to all matters concerning the interpretation
and application of the Convention’ but does not determine the interpretive methods that should be
applied. See Convention for the Protection of Human Rights and Fundamental Freedoms (Rome,
4 November 1950) (Council of Europe).
7 Arts 31–33 Vienna Convention on the Law of Treaties (Vienna, 23 May 1969) UNTS Vol 1155.
8 Golder v UK Series A no 18 (1975) para 29.
2 Introduction
in his report at the fourth International Colloquy about the ECHR in Rome
1975, for the first time in the ECHR context labelled the Convention a ‘living
legal instrument’.9 What he meant by this was that the Convention should be
interpreted in a more flexible manner in order to keep the rights in pace with
the changing European society.10 His main concerns for the necessity of a more
evolutive reading of the Convention were the open-textured formulation of the
rights on the one hand, and the enhanced political difficulty in amending the
treaty on the other.11 According to Sørensen, evolutive interpretation would
be in full accordance with the core ideals behind the ECHR, being ‘humanity,
the rule of law and freedoms’.12
Three years later, in the case of Tyrer v UK, the ECtHR took up this label
by Sørensen and called the Convention ‘a living instrument … which must be
interpreted in the light of present-day conditions’.13
The case touched upon the question whether judicial corporal punishment
by means of birching, as prescribed by the penal code at the Isle of Man, could
be classified as degrading and thus be in breach of Article 3 ECHR.14 Whereas
these kinds of penal practices had been accepted by some member states at the
time of the drafting of the Convention and continued to be publicly accepted
on the Isle of Man, the penal systems of most member states had abandoned
corporal punishment by the time of the Tyrer case.15 A legislative develop-
ment had thus taken place among the majority of European societies to refrain
from any form of corporal punishment on behalf of the state at the time when
Tyrer was decided. This development paved the way for the first explicit use
of the ‘living instrument’ doctrine by the ECtHR. For more than 40 years now,
the ECtHR has practised and further developed its evolutive interpretation of
the ECHR. It has resulted in some of the most important – and controversial –
decisions of the ECtHR and has contributed to a ‘fine-tuning’ of the rights and
obligations under the Convention.16 Many of those cases touched upon issues of
discrimination17 or on positive obligations of states to effectively protect people
from criminal offences,18 but in more general terms, evolutive interpretation has
led to an up-to-date interpretation of most of the Convention rights.19
9 Report at the fourth International Colloquy about the European Convention on Human Rights,
(Rome, 5–8 November 1975) H/Coll (75)2 22.

10 ibid 5–6.
11 ibid 4–5.
12 ibid 22.
13 Tyrer v UK Series A no 26 (1978) para 31.
14 ibid paras 28–30.
15 ibid para 31.
16 Luzius Wildhaber, ‘Rethinking the European Court of Human Rights’ in Jonas Christoffersen
and Mikael R Madsen (eds), The European Court of Human Rights between Law and Politics
(Oxford, Oxford University Press, 2011) 210.
17 See, eg, Marckx v Belgium (n 1) on ‘illegitimate children’; Christine Goodwin v UK [GC] (n 2)
on the right of transsexuals; Hirst v UK (No 2) [GC] EHRR 2005-IX on prisoner voting rights.
18 See, eg, Opuz v Turkey EHRR 2009-III on criminal prosecution of domestic violence against
women; M.C. v Bulgaria EHRR 2003-XII on criminal prosecution of rape.

19 See, eg, Selmouni v France [GC] (1999) EHRR 1999-V on the definition of torture regarding
police custody (Art 3); Schalk und Kopf v Austria (n 3) on the definition of family life with regard
Introduction 3
From the very beginning, evolutive interpretation has been accompanied by

criticism from within the Court and outside. Evolutive interpretation is deemed
to be one of the most contentious tools of the ECtHR.20 The most famous
opponent within the Court was the former British judge Sir Gerald Fitzmaurice,
who sat on the bench of the Court in the 1970s, when it decided the first cases
of evolutive interpretation such as Tyrer v UK or Golder v UK. The British
judge dissented in both,21 claiming that the ECHR was an instrument to protect
Europe against the most serious breaches of human rights and not an instru-
ment that should be used for indirect political reforms.22 Opposition against
the Court’s practice of evolutive interpretation was also formed outside the
Court, in the political as well as in the academic realm. The Court’s evolutive
approach to interpretation was a point of intense discussion at the High Level
Conference in Brighton in 2012, a political reform meeting on the future of the
ECHR. There, the member states of the Council of Europe (CoE) agreed on
Additional Protocol No 15 amending the ECHR.23 It amends the Preamble of
the Convention in a way which leaves us with a question mark regarding the
legitimacy of evolutive interpretation. The new Protocol adds a final paragraph
to the Preamble of the Convention, which reads:
Affirming that the High Contracting Parties, in accordance with the principle of
subsidiarity, have the primary responsibility to secure the rights and freedoms defined
in this Convention and the Protocols thereto, and that in doing so they enjoy a margin
of appreciation, subject to the supervisory jurisdiction of the European Court of
Human Rights established by this Convention.24
The new paragraph indirectly affects evolutive interpretation through its empha-
sis on the principles of subsidiarity and margin of appreciation. The principle
of subsidiarity expresses the Court’s function as a mere control mechanism for
whether the member states, as the primary guardians of the Convention rights,
have complied with their obligations.25 The margin of appreciation doctrine is
an approach developed by the ECtHR, which leaves the member states a certain
room for manoeuvre in the application and implementation of the Convention
rights.26 The reference to these two principles in the new Preamble touches the
to homosexual couples; Bayatyan v Armenia [GC] EHRR 2011-IV on the right to conscientious
objection (Arts 9 and 4); Magyar Helsinki Bizottsag v Hungary [GC] EHRR 2016 on the right of
access to state-held information (Art 10); Young, James and Webster v UK Series A no 44 (1982) on
the negative right not to be part of an association (Art 11).
20 Björnstjern Baade, Der EGMR als Diskurswächter (Berlin, Springer, 2016) 157.
21 Bates (n 4) 361f.
22 Tyrer v UK (n 13) dissenting opinion of Judge Fitzmaurice, para 14.
23 Protocol No 15 amending the Convention for the Protection of Human Rights and Fundamental
Freedoms (Strasbourg, 24 June 2013) CETS No 213. Entry into force 1 August 2021.
24 ibid Art 1.
25 Janneke H Gerards, General Principles of the European Convention on Human Rights
(Cambridge, Cambridge University Press, 2019) 5.

26 ibid 168.
4 Introduction
legitimacy sphere of evolutive interpretation for several reasons. First, while

no other doctrine for the application of the Convention is mentioned in the
Convention text, the margin of appreciation is the only one to which the text
explicitly refers.27 It seems as though the member states are seeking to push the
ECtHR to be more deferential to national conceptions of human rights. Critics
of the amendment have labelled this an illegitimate interference with the Court’s
autonomy to interpret the Convention.28 Second, it is the first amendment to the
Preamble since the drafting of the ECHR. Given that from a general point of
view preambles are declarations specifying the identity of a legal system,29 an
amendment to the Preamble of the ECHR implies that the member states are
aiming to redesign the identity of the CoE system.30 It seems that the member
states are trying to shape the Court’s approach to interpretation in such a way
that it should leave any evolution of the Convention rights to the member
states.31 A particular example of the critical reception of evolutive interpreta-
tion in the member states is the reluctance of the United Kingdom to implement
judgments of the ECtHR concerning the evolutive interpretation of prisoners’
voting rights.32 This case even gave rise to a political discussion in the United
Kingdom about leaving the Convention system.33 There is also a lively academic
debate on the illegitimacy of evolutive interpretation, which points to its demo-
cratic illegitimacy34 or the risk of human rights inflation.35 Consequently, the
evolutive interpretation by the ECtHR has been appreciated as well as criticised
in politics and academia. Yet, the question whether it is legitimate, and whether
it leads to decisions with authoritative character, remains unanswered. This is
the central question to which this book provides an answer.
The aim of this book is to determine the conditions of legitimate evolution
of the interpretation of the ECHR in reaction to new factual or moral develop-
ments in society. The investigation also includes the contrasting quest for the
27 Lisa Sonnleitner, ‘The Democratic Legitimacy of Evolutive Interpretation by the European
Court of Human Rights’ (2019) 33(2) Temple International & Comparative Law Journal 279, 281.
28 Amnesty International, ‘Joint NGO input to the ongoing negotiations on the draft Brighton
Declaration on the Future of the European Court of Human Rights, 20 March 2012’ (2012) 3, www.
amnesty.org/en/documents/IOR61/005/2012/en/.
29 Mark Tushnet, ‘The Possibilities of Comparative Constitutional Law’ (1999) 108(6) Yale Law
Journal 1225, 1271f; Vicki C Jackson, ‘Comparative Constitutional Law: Methodologies’ in Michel
Rosenfeld (ed), The Oxford Handbook of Comparative Constitutional Law (Oxford, Oxford
University Press, 2012) 71.
30 Sonnleitner (n 27) 281.
31 ibid 280–81.
32 See, eg, Hirst v UK (No 2) [GC] (n 17).
33 Alice Donald and Philip Leach, Parliaments and the European Court of Human Rights (Oxford,
Oxford University Press, 2016) 6–7.

34 Lord Sumption, 27th Sultan Azlan Shah Lecture: The Limits of Law, 20 November 2013, Kuala
Lumpur, published in: Lord Sumption, ‘The Limits of Law’ in NW Barber, Richard Ekins and Paul
Yowell (eds), Lord Sumption and the Limits of the Law (Oxford, Hart Publishing, 2016).
35 Alfred WB Simpson, ‘Hersch Lauterpacht and the Genesis of the Age of Human Rights’ (2004)
120 Law Quarterly Review 49, 78.

Introduction 5
conditions of legitimate stagnation in the Convention’s interpretation by means

of static interpretation. Static interpretation means that the ECtHR does not
further develop the interpretation of the Convention but leaves these issues to
the member states of the CoE. It needs to be settled from the outset that this
book does not aim to provide a descriptive analysis of the ECtHR’s practice
of evolutive interpretation. Rather, the research will determine the legitimate
role of evolutive and static interpretation in a more abstract manner while still
being embedded in the concrete context of interpretation of the ECHR. This
book presents a normative theory for the legitimacy of evolutive and static
interpretation of the ECHR.
What do I mean by legitimacy? Legitimacy is intrinsically connected with
the concept of ‘authority’. A court may use a theory of interpretation only if it
has authority to do so.36 Hence, whenever the ECtHR interprets evolutively, it
raises a claim to the authority of its decision. The crucial question is whether
cases of evolutive interpretation have authoritative character, hence, whether
they must be obeyed by the member states to the Convention. This is a ques-
tion of legitimacy. One can distinguish between normative and descriptive
accounts of legitimacy.37 The latter requires that people have faith in the author-
ity of an institution or decision in order for it to be legitimate. This descriptive
account of legitimacy was fundamentally shaped by Max Weber and his notion
of ‘Legitimitätsglaube’.38 Contrary to that, I will use the term legitimacy in a
normative sense, which requires that the claimed authority is justifiable.39 For
example, Raz’s account of the legitimacy of a political authority is a normative
account, which is linked to the justification of this authority.40 Only if an author-
ity fulfils a certain threshold of justifiability is there a moral obligation to obey
it.41 I follow the idea that justifiability is key for the legitimacy of evolutive and
static interpretation. Yet, how do we pass the threshold of good justification? I
argue that the justification of the Convention’s interpretation must conform to
the constitutional commands of the ECHR. Consequently, this book constructs
a justification model, which draws the legitimacy of evolutive and static inter-
pretation from the constitutional principles of the ECHR.
The second theme that drives this investigation is the debate on absolute
or relative legitimacy of evolutive interpretation. Absolute legitimacy means
36 Arguing in the context of American constitutional interpretation: Robert Post, ‘Theories of
Constitutional Interpretation’ (1990) 30 Representations 13, 19.

37 Fabienne Peter, ‘Political Legitimacy’ in Edward N Zalta (ed), The Stanford Encyclopedia of
Philosophy, 2017, https://plato.stanford.edu/archives/sum2017/entries/legitimacy/.

38 Max Weber, Wirtschaft und Gesellschaft: Grundriss der verstehenden Soziologie (5th edn,
Tübingen, Mohr-Siebeck, 2009) 122.

39 Peter (n 37).
40 Joseph Raz, The Morality of Freedom (Oxford, Clarendon Press, 2010) chapters 2 and 3; Joseph
Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford,
Oxford University Press, 2009) chapter 13, especially pp 353f on constitutional interpretation.
41 Peter (n 37).
6 Introduction
that it is legitimate in any case concerning the interpretation of the ECHR,

whereas relative legitimacy means that the legitimacy depends on the fulfilment
of further requirements that are relative to the specific circumstances of the case.
Most legitimacy theories in the academic discourse about evolutive interpreta-
tion build on arguments that legitimise the use of evolutive interpretation in
all cases.42 Alternatively, there are theories that dismiss the legitimacy of evolu-
tive interpretation in any case while arguing in favour of an exclusive legitimacy
of static interpretation. These absolute theories imply that once the normative
source of evolutive or static interpretation is identified in abstracto, a court no
longer needs further justification for applying the interpretive argument in a
concrete case. This book proves absolute theories wrong. Instead, it defends a
relative legitimacy theory for static and evolutive interpretation, according to
which they are justified in principle, while their concrete legitimacy must be
justified case by case. The theory builds on the argument that the constitutional
system of the ECHR protects competing constitutional principles. Chapter 7
identifies the principles of human rights, democracy and the rule of law as the
constitutional core of the Convention. There is an innate dichotomy in these
three principles between more formal and more substantive aspects. This
dichotomy creates tension within the constitutional core. This tension is not
problematic, however. It reflects the dual nature of law, which has a real and an
ideal dimension. While the real dimension requires static interpretation, the ideal
dimension requires evolutive interpretation. This is the reason why there can be
no absolute answer to the question of legitimacy of evolutive or static interpre-
tation. The dual nature of law requires a relative legitimacy, which depends on a
case-sensitive consideration of the Convention’s constitutional principles in the
justification process. Consequently, I argue that the tension between the compet-
ing constitutional principles can be resolved by means of balancing. In this book
I construct a balancing model for determining the legitimacy of evolutive and
static interpretation of the ECHR.
Why is it relevant to study the legitimacy of evolutive and static interpre-
tation in the concrete context of the ECHR? Evolutive interpretation is not
an exclusive practice of the ECtHR. National constitutional courts and other
international courts make use of evolutive interpretation as well. The debate
on matters of ‘intertemporal interpretation’ is not new to scholars of interna-
tional and constitutional law either.43 The ECtHR’s picture of the Convention
as a living instrument connects to older debates in constitutional law on the
idea of a ‘living constitution’, which refers to ‘judicial development of constitu-
tional law’.44 Kavanagh has demonstrated that many national supreme courts or
42 This will be demonstrated by means of the analysis of the current legitimacy arguments in
Chapter 3.
43 TO Elias, ‘The Doctrine of Intertemporal Law’ (1980) 74(2) American Journal of International
Law 285.
44 Aileen Kavanagh, ‘The Idea of a “Living Constitution”’ (2003) 16(1) Canadian Journal of Law
and Jurisprudence 55, 56.

Introduction 7
constitutional courts, such as the courts in Canada, Ireland or the United States,
do use evolutionary approaches to interpretation.45 The idea of static interpre-
tation connects to the debate on originalism, which claims that a legal norm
needs to be interpreted in line with the intentions of the original drafters or the
original meaning of the text.46 There is still a lively debate on originalism and
dynamism in interpretation, mostly among American scholars.47 Yet, ‘the legit-
imacy-dilemma of intertemporal interpretation is no less acute in international
law than in other fields of law’.48 The International Court of Justice (ICJ), in its
Report on the Legal Consequences for States of the continued presence of South
Africa in Namibia, dating from 1971, stated that ‘certain concepts are not static,
but were by definition evolutionary’.49 In the more recent case of Dispute regard-
ing Navigational and Related Rights (Costa Rica v Nicaragua), the ICJ stated
that the use of generic terms in treaties implies that the contracting parties have
agreed on an evolutive interpretation of these terms.50 Since evolutive interpreta-
tion is thus an approach to interpretation that is also practised by other courts,
the choice of studying the ECHR rather than any other legal system requires
further justification. I argue that the legitimacy of evolutive interpretation is
contextual. Although the legitimacy model, which I present in this book, has a
sufficient level of abstraction to be transferable to other legal systems, concrete
legitimacy can only be established on the basis of the constitutionalist princi-
ples in a specific legal system. The practicability of the theory can thus only
be demonstrated by means of a concrete example. Therefore, it is necessary
to investigate the topic with focus on a specific legal system. Additionally, the
ECHR is one of the most advanced and progressive systems for the protection
of human rights on a global level.51 Chapter 6 demonstrates the advanced level
of constitutionalisation in the ECHR in more detail. Lastly, the fact that the
ECtHR is the focus of attention of the international debate on the legitimacy of
evolutive interpretation renders the study of this specific human rights protec-
tion system particularly relevant. It has the potential to make a vital contribution
to the most controversial debate on evolutive interpretation in international law
by developing a convincing legitimacy model.
45 ibid 55.
46 Jack M Balkin, Living Originalism (Cambridge, MA, Belknap Press of Harvard University
Press, 2011) 3, 6f.
47 See, eg, David A Strauss, The Living Constitution (Oxford, Oxford University Press 2010);
Amy Gutmann and Antonin Scalia (eds), A matter of Interpretation: Federal Courts and the Law
(Princeton, NJ, Princeton University Press, 1997); Balkin (n 46).
48 Christopher A Ford, ‘Judicial Discretion in International Jurisprudence: Article 38(1)(C) and
“General Principles of Law”’ (1994) 5 Duke Journal of Comparative and International Law 35, 36.
49 Legal Consequences for States of the continued presence of South Africa in Namibia (South
West Africa) notwithstanding Security Council Resolution 276 Advisory Opinion, ICJ Reports 1971
para 53.
50 Dispute regarding navigational and related rights (Costa Rica v Nicaragua) Judgment, ICJ
Reports 2009 para 66.

51 Bates (n 4) 4.
8 Introduction
This book is divided into four parts and 13 chapters, preceded by an intro-
duction and followed by a conclusion. Part I sets up the fundaments of the
theory presented in this book. As my argument builds on Alexy’s idea of the
dual nature of law, Chapter 1 explores this concept of law, which also informs
the concept of human rights. I have already pointed out that this book does
not aim to provide a descriptive analysis of the ECtHR’s interpretive practice in
intertemporal interpretation. Therefore, Chapter 2 introduces a new concept of
evolutive and static interpretation, which places the two interpretive approaches
in the time dimension of interpretation. It highlights why the study of the legiti-
macy of evolutive interpretation is intimately connected to the study of static
interpretation.
Many scholars have discussed the legitimacy of evolutive interpretation of
the ECHR, and they have introduced a variety of argumentative paths for prov-
ing or disproving its legitimacy.52 I will demonstrate in Chapter 3 that so far
these efforts have remained unfruitful. The debate is dominated by three main
approaches, which either ground the legitimacy of evolutive interpretation in
one of the canons of interpretation of Articles 31–33 VCLT,53 or in particular
principles of international law,54 or which build legitimacy on a factual basis by
tying its justification to the existence of a consensus among the member states
of the CoE.55 One of the major weaknesses of these arguments is that they
represent absolute legitimacy arguments that either neglect or overstate the role
of static interpretation. Those which overstate the role of static interpretation
mostly do so because they criticise evolutive interpretation for infringing prin-
ciples such as sovereignty, democracy and the rule of law. Chapter 4 addresses
these critical views and reinforces the argument that both evolutive and static
interpretation assume a legitimate role in the interpretation of the ECHR if they
pass the threshold of justifiability.
In this book I advance the argument that the constitutional principles of the
ECHR determine this threshold of justifiability. Part II of the book constructs
52 See, eg, George Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in
Andreas Føllesdal, Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European
Court of Human Rights in a National, European, and Global Context (Cambridge, Cambridge
University Press, 2013); Kanstantsin Dzehtsiarou, European Consensus and the Legitimacy of the
European Court of Human Rights (Cambridge, Cambridge University Press, 2015); Steven Greer,
The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge,
Cambridge University Press, 2008); Eirik Bjorge, The Evolutionary Interpretation of Treaties
(Oxford, Oxford University Press, 2014).
53 See, eg, Bjorge (n 52); Rudolph Bernhardt, ‘Evolutive Treaty Interpretation, Especially of the
European Convention on Human Rights’ (1999) 42 German Yearbook of International Law 11;
Soren C Prebensen, ‘Evolutive Interpretation of the ECHR’ in Paul Mahoney, F Matscher, H Petzold
and L Wildhaber (eds), Protecting Human Rights: The European Perspective: Studies in Memory of
Rolv Ryssdal (Cologne, Heymanns, 2000); for a more detailed discussion of these approaches see
Chapter 3.
54 These arguments are particularly common in the ECtHR’s justifications of evolutive interpreta-
tions, as Chapter 3 will demonstrate.

55 Dzehtsiarou (n 52).
Introduction 9
the constitutional framework for the legitimacy of intertemporal interpreta-

tion of the ECHR. Given the fact that the object of analysis is an international
human rights treaty the constitutional nature of which is disputable, Chapter 5
introduces the arguments of cosmopolitan constitutionalism and deliberative
constitutionalism, which will then be applied to determine the constitutional
status of the ECHR in Chapter 6. In Chapter 7 I argue that the three principles
of human rights, democracy and the rule of law constitute the main body of
the Convention’s constitution. These principles display formal and substantive
sides, which are constantly in tension. This innate duality of the Convention’s
constitution is key for understanding that, in principle, evolutive and static
interpretation are both justifiable by normative constitutional principles.
The finding that the Convention’s constitutional core protects competing
principles serves as a starting point for the legitimacy model, which I construct
in Part III of the book. Chapter 8 introduces the idea of balancing principles,
which is usually applied to resolve conflicts between colliding fundamental
rights,56 to the debate on the legitimacy of intertemporal interpretation. I will
strongly defend the argument that the balancing of the Convention’s constitu-
tional principles for determining the legitimacy of the interpretive approach
is preferable to other arguments for establishing a ranking between interpre-
tive methods. Chapter 9 then constructs the balancing model in detail, while
also reflecting on criticism of the use of balancing in human rights adjudica-
tion. Chapter 10 deals with one of the most difficult issues arising in the use
of balancing: the external justification of the weights accorded to the relevant
constitutional principles. I present evolutive and static weighting rules, which
help to determine the concrete weights of the principles in a case.
Part IV illustrates the practicability of the theoretical model by applying it to
selected cases of the ECtHR. Chapters 11, 12 and 13 discuss the subject matters
of the right to divorce, the right to assisted suicide and the right to preservation
of the environment, which currently pose challenges to the interpretation of
the ECHR. The practical application of the theory to these cases reveals that
the balancing model leads to reasonable outcomes in intertemporal interpreta-
tion. The balancing of the Convention’s constitutional principles enables us to
identify clearly whether evolutive interpretation or static interpretation is the
legitimate interpretive approach to a case, and whether the member states enjoy
a margin of appreciation in their interpretation of the Convention rights.
By the end of the book, we will know that the ECHR rests on a very
sound constitutional footing. Reflecting the ideal and real dimension of law,
the constitutional core protects static as well as evolutive constitutional prin-
ciples. Paradoxically as it may seem, the study of this book demonstrates
ambivalent behaviour by the member states of the CoE, which have contributed
56 For the major work on the theory of balancing, see Robert Alexy, A Theory of Constitutional
Rights (Julian Rivers trans, Oxford, Oxford University Press, 2010 (repr)).
10 Introduction
tremendously to the fostering of evolutive constitutional principles since the

entry into force of the Convention, while criticising the ECtHR for its evolu-
tive interpretation. Recent efforts to strengthen the Court’s subsidiary role or
its respect for the state’s margin of appreciation through the amendment of the
Convention’s Preamble are redundant. These values already form an essential
part of the Convention’s constitutional core. From the innate tension within the
Convention’s constitution, it follows that both evolutive and static interpreta-
tion are justifiable in principle. The key to the concrete legitimacy of evolutive or
static interpretation lies in the Court’s justification, which must strike a reason-
able balance between evolutive and static constitutional principles.
Part I
Fundamentals
T
HE ECTHR DECLARED in various judgments that it would interpret
the ECHR evolutively. Yet, what exactly is this interpretive approach
we are talking about? How should we conceive of evolutive interpreta-
tion? And should we accept this practice as being legitimate? This chapter will
explore these fundamental questions. It will not accept that due to the manifold
use of this interpretive doctrine, ‘the ECtHR is allowed to “play” the “living
instrument”’.1
Chapter 1 will elucidate the theoretical framework of analysis. It presents
the underlying concept of law, and particularly of human rights, which informs
this study. Chapter 2 will then construct a new concept for evolutive interpreta-
tion, which goes beyond the Court’s practice. Chapter 3 investigates academic
theories and the Court’s justifications for the legitimacy of evolutive interpreta-
tion. Finally, Chapter 4 analyses critical voices arguing against the legitimacy of
evolutive interpretation.
Part I of this book will demonstrate that the key to the legitimacy problem
lies in a theory that is not only case sensitive, but which also shows due respect
to static as well as evolutive elements. This is exactly what is missing in existing
legitimacy theories.
1 Christian Djeffal, ‘Dynamic and Evolutive Interpretation of the ECHR by Domestic Courts?
An Inquiry into the Judicial Architecture of Europe’ in Helmut P Aust and Georg Nolte (eds),
The Interpretation of International Law by Domestic Courts: Uniformity, Diversity, Convergence
(Oxford, Oxford University Press, 2016) 177.
1
On the Concepts of Law
and Human Rights
A
S I WILL delve deeply into the interpretation of human rights, I first
need to clarify the concept not only of human rights, but of law in
general. Böckenförde has rightly stated that there is an intrinsic con-
nection between the constitutional interpretation and the underlying theory
of constitutional rights.1 Taking this observation to hold true for the realm of
human rights interpretation as well, my concepts of law and human rights will
be presented briefly in the following. I will start by recapitulating a particular
theory for the concept of law by Alexy, the ‘dual nature of law’ (Section I),
and will then continue with a delineation of the underlying concept of human
rights (Section II). While I am fully aware that these concepts of law and human
rights are prone to criticism in some respect, I am convinced that these are the
most persuasive theories we currently have. I will thus not go into detail about
alternative theories but will simply introduce them so that readers can follow
my subsequent argument.
I. THE DUAL NATURE OF LAW
While the main subject of this study is international human rights as a specific
category of law, and their interpretation, I follow an underlying concept of law,
which informs the analytical framework for my analysis of human rights inter-
pretation. This is a non-positivist concept of law. It has implications not only
for the more specific concept of human rights, but also for the interpretation of
human rights.
Following a suggestion by Alexy, law has a dual nature.2 It combines a real
dimension, which embraces authoritative issuance and social acceptance, and
an ideal dimension, which stands for the law’s claim to correctness. This claim
is a claim to moral correctness, which could also be called a claim to truth or
objectivity.3 Consequently, law has a legal and moral character.
1 Ernst-Wolfgang Böckenförde, ‘Grundrechtstheorie und Grundrechtsinterpretation’ in Ralf
Dreier (ed), Probleme der Verfassungsinterpretation: Dokumentation einer Kontroverse (Baden-

Baden, Nomos, 1976) 266–67.
2 Robert Alexy, ‘The Dual Nature of Law’ (2010) 23(2) Ratio Juris 167, 167.
3 ibid 167, 170.
14 On the Concepts of Law and Human Rights
The connection between the claim to correctness and morality has been
criticised for being irrational as it is prone to moral subjectivity or relativism.4
In reaction to this criticism, the dual-nature theory adheres to discourse theory,
which provides a procedure of rational practical discourse and which helps to
achieve outcomes that are as correct as possible.5 A rational practical discourse
empowers everyone to participate equally in a discourse that takes place under
certain conditions, which enhance the rationality of the discourse.6
Law’s claim to correctness is twofold. Although the primary claim to
correctness aims at justice, the dual-nature thesis accepts that the real or posi-
tivised dimension of law also serves valuable principles such as legal certainty.
Therefore, according to Alexy, the claim to correctness has a second level, which
looks not only at the ideal dimension, but also at the real dimension, and thus
at legal certainty.7 This second level is relevant because on its first, purely ideal
level, the claim to correctness might end up in legitimate moral disagreement,
that is to say a situation in which rational discourse leads to several morally
equally acceptable outcomes.8 In this case, the correctness follows from the
real dimension of law, hence from positive law as established in a democratic
procedure. However, the second level, as indicated above, actually combines the
real and the ideal dimension in order to ensure that the democratically achieved
outcomes are in conformity with law’s claim to correctness.9 From this it follows
that the dual-nature concept of law grants not only ‘ideal correctness’ in the
sense of justice, but also ‘real correctness’ in the sense of legal certainty. Hence,
both dimensions of law are indispensable for legal practice.10
Yet, naturally the ideal and real dimension of law often compete in practice,
which requires that both are balanced.11 According to this concept of law, justice
and legal certainty thus constantly need to be put in the correct proportion. This
balance is inherent in the concept of law itself.12
II. THE CONCEPT OF HUMAN RIGHTS
The ECHR, as an international human rights treaty, sets up a list of rights

that can be classified as legal human rights.13 Yet, it is important to distinguish
4 ibid 171–72.
5 ibid 171–72.
6 ibid 172. For further information on the conditions of the discourse, see Robert Alexy, A Theory
of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Ruth
Adler and Neil MacCormick trans, Oxford, Oxford University Press, 2011).
7 Alexy, ‘The Dual Nature of Law’ (n 2) 174.
8 ibid 173.
9 ibid.
10 ibid 174.
11 ibid.
12 ibid.
13 Samantha Besson, ‘Justifications’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran
(eds), International Human Rights Law (3rd edn, Oxford, Oxford University Press, 2018) 28, argu-
ing in the context international human rights treaties in general.
The Concept of Human Rights 15
whether one follows a conception of human rights as legal rights or as legal and
moral rights. While the first conception assumes that human rights are ‘created
by law’,14 the latter assumes that human rights are moral rights that are ‘recog-
nized by law’.15 This distinction between human rights as legal or moral rights
can be connected with Alexy’s terminology of the real and ideal dimension of
law, which I have discussed in the previous section. Legal rights can be accorded
to the real dimension of law, eg because they have been issued by a competent
authority, while human rights as moral rights would belong to the ideal dimen-
sion of law.16 If human rights become positivised in a human rights catalogue,
the real and ideal dimension of human rights are connected.17 Conceiving of
human rights as legal rights implies that they may or may not correspond to
moral rights.18 Conceptualising human rights as legal and moral rights implies
that a legal human right, implicitly or explicitly, seeks to give effect to a more
abstract, pre-existing moral right.19 Arguably, legal human rights may also create
moral rights ‘in recognition of certain fundamental moral interests’.20 I take the
conception of human rights as legal and moral rights as the basis of my study.
The way in which we conceptualise human rights has implications for the
way in which we may justify their authority.21 While purely legal justifications
suffice for human rights as legal rights, human rights conceptions, which entail
moral rights are in need of a further moral justification.22 Whereas most theories
for the justification of human rights strive for moral justifications in the fash-
ion of a ‘“top-down” derivation of human rights’23 from moral justifications,
it seems more reasonable not to lose track of legal human rights practice in the
justification of human rights.24 This is achieved by ‘bottom-up’25 approaches,
which stress the relevance of legal reasoning for the normative justification of
human rights.26
I will thus follow a bottom-up concept for the justification of human
rights, which is best expressed in Forst’s ‘constructivist conception of human
rights’.27 It is based on the central idea that every human being has the
14 Joseph Raz, ‘Human Rights in the Emerging World Order’ (2010) 1(1) Transnational Legal
Theory 31, 34.

15 ibid.
16 Alexy, ‘The Dual Nature of Law’ (n 2) 178.
17 ibid.
18 Raz (n 14) 34.
19 ibid.
20 Besson (n 13) 28.
21 ibid 27.
22 ibid 29.
23 ibid.
24 Buchanan stresses that the justification of human rights should not focus exclusively on moral
justifications: Allen E Buchanan, The Heart of Human Rights (Oxford, Oxford University Press,
2014) chapter 2, especially at 82; Besson (n 13) 29.
25 Besson (n 13) 29.
26 ibid.
27 Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (Jeffrey
Flynn trans, New York, Columbia University Press, 2012) 203.

16 On the Concepts of Law and Human Rights
basic right to justification.28 It expresses the claim of every individual to be

respected as a moral person who has the right to be given reasons for the way
he or she is treated.29 This leads to a conception of human rights that is thor-
oughly constructivist, as the claim for providing reasons leads to an ongoing
process of justification of rights which is never concluded.30 The constructivist
conception of human rights is fully compatible with the conception of human
rights followed by Alexy.31 According to Alexy, the moral justification of
human rights lies in their rational justifiability.32 Furthermore, the justification
of a concrete human right must be constructed in a concrete context due to the
abstractness of positivised human rights.33 Forst’s conception of human rights
is universal as it only institutionalises a ‘central morality’, which makes the
concrete justification of rights and institutions as well as the set of legitimate
reasons for their justification dependent on the concrete context of the right.34
The only condition for a right to be a human right then is its justifiability by
means of rational arguments that cannot be rejected by a reasonable person.35
Whereas this justificatory core of human rights is universal as it cannot
reasonably be denied by any culture, the concrete set of reasons may vary
between different cultures.36 Consequently, the model provided by Forst also
amounts to a discursive concept of human rights, which connects to discourse
theory.37
Exactly because of its inherent focus on legal reasoning, Forst’s theory is
particularly appealing for studies of human rights interpretation. Given the
interpretive character of human rights, it appears that they are dynamic to a
certain extent. Yet, is evolutive interpretation a legitimate way to do justice to
this dynamic feature? In order to answer this fundamental question, we need to
be sure what exactly we understand by evolutive interpretation. The following
chapter constructs a concept of evolutive interpretation.
28 ibid 205.
29 ibid 209–10.
30 ibid 211–12.
31 Robert Alexy, ‘Die Institutionalisierung der Menschenrechte im demokratischen
Verfassungsstaat’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte
(Frankfurt am Main, Suhrkamp, 2007) 246–54.
32 ibid 249–50.
33 ibid 253–54.
34 Forst (n 27) 212.
35 ibid 213, but then he argues more precisely at 215 that the reasons provided must meet the
requirements of reciprocity and generality.

36 ibid 215.
37 ibid 217.
2
A New Concept of Evolutive
and Static Interpretation
I
N STUDYING THE legitimacy of evolutive interpretation, it strikes one that the
debate actually turns on a doctrine without a concept. There is no clear-cut
definition of evolutive interpretation. In its case law, the ECtHR usually
confines itself to the phrase as established in Tyrer, which states that the ECHR
is a ‘living instrument … which must be interpreted in the light of present-day
conditions’.1
However, instead of defining evolutive interpretation, this is rather a state-
ment that the ECHR should be interpreted in an evolutive manner. It remains
unclear what exactly the Court means by the terms ‘living instrument’ or ‘present-
day conditions’. This results in the fact that scholars, judges and practitioners
have different concepts in mind when talking about evolutive interpretation.
Additionally, authors use different labels such as ‘dynamic interpretation’,
‘living instrument doctrine’ and ‘evolutive interpretation’.2 I perceive the three of
them to refer to the same phenomenon in the interpretation of the Convention,
but I stick to the latter label in this book. This is because the use of the term
‘living instrument’ would create the wrong impression that my concept of evolu-
tive interpretation is based on the Court’s practice of evolutive interpretation.
The term ‘dynamic interpretation’ is less frequently used in the academic debate
than the term ‘evolutive interpretation’. It has even been argued that the term
evolutive interpretation expresses its connection to societal development in a
better way than the term dynamic interpretation.3
This chapter introduces a comprehensive, normative concept of evolutive
interpretation which is not confined to the analysis of conceptual elements
1 Tyrer v UK Series A no 26 (1978) para 31.

2 See, eg, Kanstantsin Dzehtsiarou, ‘European Consensus and the Evolutive Interpretation of
the European Convention on Human Rights’ (2011) 12(10) German Law Journal 1730; George
Letsas, ‘The ECHR as a Living Instrument: Its Meaning and Legitimacy’ in Andreas Føllesdal,
Birgit Peters and Geir Ulfstein (eds), Constituting Europe: The European Court of Human Rights
in a National, European, and Global Context (Cambridge, Cambridge University Press, 2013)
Malgosia Fitzmaurice, ‘Dynamic (Evolutive) Interpretation of Treaties’ (2009) 22 Hague Yearbook
on International Law 3.
3 Rudolph Bernhardt, ‘Evolutive Treaty Interpretation, Especially of the European Convention on
Human Rights’ (1999) 42 German Yearbook of International Law 11, 12, fn 3.

18 A New Concept of Evolutive and Static Interpretation
based on the Court’s practice. No one so far has provided a similar comprehen-
sive account of evolutive interpretation.4 The suggested model embraces three
elements. First, evolutive interpretation is not an interpretive method itself, but
forms part of a normative theory of interpretation which is located on a meta-
level of interpretive methods. Second, evolutive interpretation may unfold in all
methods of interpretation as an element of their time dimension. Third, the
point of reference for evolution as opposed to stagnation is the state of estab-
lished interpretations of rights and obligations as established in the Court’s case
law or by the drafters of the ECHR. This is to say that the conceptualisation
of evolutive interpretation necessarily demands a conceptualisation of static
interpretation as well. In the following, these three elements will be presented
in more detail.
I. EVOLUTIVE INTERPRETATION WITHIN A NORMATIVE

THEORY OF INTERPRETATION
The first element concerns the very nature of evolutive interpretation as an

interpretive approach. The academic discourse about evolutive interpretation
oscillates between categorising it as an interpretive method or an interpretive
principle.5 The qualification as a method implies that like other interpretive
methods such as literal or systematic interpretation, evolutive interpretation is a
means to identify the meaning of a term.
It is maintained here that evolutive interpretation forms part of a norma-
tive theory of intertemporal interpretation. It is certainly not an interpretive
method that adds up to the other classic canons as set forth in the VCLT in the
substantive interpretation of a right.6 As Senden states, ‘Qualifying evolutive
interpretation as a method of interpretation, thus, wrongly implies that a judge
with the help of this principle alone can interpret a specific provision’.7
Evolutive interpretation tells us something about how to approach an inter-
pretation, but it provides no semantic information about a right. In order to
identify an evolution in the meaning of a norm, evolutive interpretation needs
to be informed by other arguments, be it a comparative analysis or a purposive
interpretation or any other canon of interpretation. Consequently, one cannot
4 I have outlined an embryonic version of this concept in my article: Lisa Sonnleitner, ‘The
Democratic Legitimacy of Evolutive Interpretation by the European Court of Human Rights’ (2019)
33(2) Temple International & Comparative Law Journal 279, 285–87.
5 Steven Greer, The European Convention on Human Rights: Achievements, Problems and
Prospects (Cambridge, Cambridge University Press, 2008) 193–94. Greer is one of the few excep-
tions who speaks of interpretive principles. He does not clarify the implications of this qualification
however. For a good overview of the ‘chaos’ in the literature, see Hanneke Senden, Interpretation of
Fundamental Rights in a Multilevel Legal System: An Analysis of the European Court of Human
Rights and the Court of Justice of the European Union (Cambridge, Intersentia, 2011) 71.
6 Senden (n 5) 145–46.
7 ibid 72.
Evolutive Interpretation Within a Normative Theory of Interpretation 19
identify the meaning of a norm by means of evolutive interpretation. This evalu-

ation is shared by Djeffal, who defines evolutive interpretation as the ‘result’ of
interpretation,8 and Senden, who categorises it as a principle of interpretation
which realises the ‘general objective’ to interpret a treaty in a dynamic instead
of a static fashion.9 The qualification as an interpretive principle remains quite
diverse and obscure however. Greer, for example, does not explain what exactly
he means by interpretive principle,10 but from his use of the term it seems that
he refers to all doctrines of interpretation that are used in the Court’s practice,
and which go beyond the methods listed in Articles 31–33 VCLT.
Chirardis argues that there are ‘tools’ for realising evolutive interpretation.
According to his understanding, some interpretive tools of the ECtHR, such as
the living instrument doctrine, autonomous concepts, or practical and effective
rights, serve the function of implementing evolutive interpretation.11 This seems
to imply that he perceives evolutive interpretation as an interpretive goal that
may be realised by tools of interpretation, but which is not a tool itself.
To me, evolutive interpretation has a guiding function whenever the use of
interpretive methods leads to a variety of interpretive outcomes.12 It will often
be the case that interpretive arguments will lead to different, equally possible
interpretations of a norm.13 For example, an intentionalist argument might
reveal an intended meaning that differs from the meaning following a purpo-
sive argument, which asks for the rational purpose of a norm. As the general
rule of interpretation in Article 31 VCLT also institutionalises more than one
interpretive method, international courts such as the ECtHR, which apply these
methods, will often arrive at a variety of interpretations.14 A court naturally
needs to take a decision between these possible meanings. It has to justify that
one of these meanings is the accurate understanding of the norm.15
Put differently,
[g]iven the existence of a plurality of arguments and types of argument relevant to
interpretation, there necessarily exist possibilities of conflict between rival readings
8 Christian Djeffal, Static and Evolutive Treaty Interpretation: A Functional Reconstruction
(Cambridge, Cambridge University Press, 2016) 22. Djeffal also rejects the conceptualisation
of evolutive interpretation as a ‘means of interpretation’ and describes it as ‘a class of results of
interpretations’.
9 Senden (n 5) 72.
10 Greer (n 5) 194, where he introduces the term ‘interpretive principles’.
11 Vassilis Chirardis, ‘The Limits of Interpretation of the Strasbourg Court and the Principle of
Non-regression’ in Dean Spielmann (ed), La Convention européenne des droits de l’homme, un

instrument vivant: Mélanges en l’honneur de Christos L. Rozakis, The European Convention on
Human Rights, a Living Instrument (Brussels, Bruylant, 2011) 97.
12 Wróblewski uses the terminology of second-level ‘directives of preference’ in interpretation
which guide the choice between different meanings achieved by means of ‘first-level directives of
interpretation’: Jerzy Wróblewski, Judicial Application of Law (Dordrecht, Springer, 1992) 91.
13 ibid 92–93.
14 See also Sonnleitner (n 4) 286.
15 Wróblewski (n 12) 93.
or interpretations of a statutory text, … This implies that the most urgent task for a
theory of interpretative justification relates to the resolution of such conflicts.16
Wróblewski provides a convincing theory of interpretation, which will be used

in the following to determine the nature of evolutive interpretation. He suggests
that the resolution of conflicts between rival interpretations could be guided
by what he calls ‘second-order directives’17 and ultimately by ‘normative theo-
ries of interpretation’.18 To Wróblewski, those guiding factors act on a different
level from the identification of possible meanings itself. Wróblewski differenti-
ates between ‘first level directives’ such as linguistic, systemic and functional
directives, and ‘second level directives’,19 among which only the ‘second level
directives of preference’ are of interest here. First-level directives are the primary
source for determining the meaning of a norm in the interpretive process.20 They
thus amount to the classic methods of interpretation. ‘Second level directives of
preference’ only need to be used if one cannot satisfyingly determine the mean-
ing of a norm by means of the first-level directives.21 In this case, Wróblewski
argues, ‘The court has to make a choice declaring that one of them is “the true
meaning” or the “proper meaning”. This is made with the aid of second level
directives of preference.’22
Second-level directives form part of normative theories of interpreta-
tion, which ‘fix the values which the interpretation ought to implement’.23 A
complete normative theory of interpretation would be an ideal of interpreta-
tion in which all difficulties in interpretation could be answered by reference to
some second-level directive of interpretation.24 By reference to such directives
and to the values they seek to achieve, the interpreter provides a justification
for an interpretation.25 For Wróblewski, evolutive interpretation amounts to
such a normative theory of interpretation.26 As such, it determines dynamic
second-level directives, which guide the interpreter in arguing for dynamic inter-
pretations of a norm.27 Wróblewski’s differentiation draws a convincing picture
of the interpretive process, in which interpretive canons or methods interact
with further guiding factors of interpretation. If we reconstructed the evolutive
interpretation of the ECHR in Wróblewski’s terms, it would thus amount to
16 Jerzy Wróblewski and Neil MacCormick, ‘On Justification and Interpretation’ (1994) 53 ARSP
Beiheft 255, 261.

17 Wróblewski (n 12) 92f.
18 ibid 108f.
19 ibid 91.
20 ibid 92.
21 ibid.
22 ibid 93.
23 ibid 96.
24 ibid 108.
25 ibid.
26 ibid 109.
27 ibid.
Evolutive Interpretation and the Time Dimension of Interpretation 21
a normative theory of interpretation consisting of a set of second-level direc-

tives, which can be used to justify the choice of an evolutive interpretation. Yet,
I think that Wróblewski’s picture needs to be slightly reconstructed in the sense
that evolutive interpretation is not ‘the’ normative theory of interpretation itself
but forms part of a normative theory of interpretation. Evolutive interpretation
has the function to satisfy those values of the theory of interpretation that are
of dynamic character. To stay with Wróblewski’s terminology, this aim would
be achieved by evolutive second-level directives. As such, evolutive interpreta-
tion is not a method of interpretation but part of a theory of interpretation.
It provides guidance in cases in which no clear interpretive outcome can be
achieved using interpretive methods such as literal, systematic or teleological
interpretation. As such, it forces the interpreter to take the dynamic normative
values of the Convention’s legal system into consideration. Following the above
considerations, I thus categorise evolutive interpretation as an integral part of
a normative theory of interpretation, which guides the ECtHR in interpreting
the Convention.
II. EVOLUTIVE INTERPRETATION AS AN ELEMENT OF THE TIME

DIMENSION OF INTERPRETATION
The second feature of evolutive interpretation is that in its guiding function it

may be displayed in all methods of interpretation. It is shown in what may be
called the ‘time dimension’ of interpretive methods. In constitutional theory
there is a model which categorises interpretive results as belonging to dimen-
sions of interpretation. Mennicken has introduced a model with two spectrums,
which represent two dimensions of interpretation. Any interpretation can be
mapped in these two spectrums.28 The first spectrum refers to the material
dimension of interpretation, which maps subjective and objective meanings on a
scale. The second spectrum refers to the time dimension of interpretation, which
maps historical and contemporary meanings on a scale.29 It is the latter dimen-
sion which is of interest for defining the space in which evolutive interpretation
operates. If we stick to Wróblewski’s wording, which I have discussed in the
previous section, each end of a spectrum seeks to accomplish different values of
a wider normative theory of interpretation. In Mennicken’s time dimension, the
contemporary meaning would stand for evolutive interpretation, whereas the
historical meaning would stand for static interpretation. Evolutive interpreta-
tion is thus one of two poles in the time dimension of interpretation. This is an
important observation, which leads to some further insights about the nature of
28 Axel Mennicken, Das Ziel der Gesetzesauslegung: Eine Untersuchung zur subjektiven und
objektiven Auslegungstheorie (Bad Homburg, Verlag Gehlen, 1970).

29 ibid 17–18.
evolutive interpretation. First, it shows very clearly that evolutive interpretation

is not attached to a specific method of interpretation. This is a perspective miss-
ing in the discussion on evolutive interpretation of the ECtHR hitherto. Most
authors connect evolutive interpretation to a specific method of interpretation.30
It is important to note that this also holds true for Wróblewski’s understand-
ing of ‘dynamic theories’ of interpretation, which allocates them to teleological
interpretation.31 One exception is the argument of Senden, who character-
ises evolutive interpretation as being an integral part of various methods of
interpretation.32 Yet, this is also imprecise, as I argue that evolutive interpreta-
tion is displayed in all commonly known methods of interpretation. Admittedly,
the evolutive dimension is more obvious in some methods, such as teleologi-
cal interpretation, than in others, such as historical interpretation. Yet, even a
historical interpretation could change in the course of time if, for example, new
facts about the legislative intentions or the drafting process of a legal document
were revealed. Contrary to the discourse on evolutive interpretation, the fact
that any method of interpretation has a time dimension is acknowledged in the
discourse on constitutional interpretation.33 Häberle, for example, argues that
all interpretive methods bear a static and dynamic time dimension.34
There is another important lesson that we can learn from the second feature
of evolutive interpretation. It demonstrates very clearly that evolutive interpre-
tation only covers interpretive results, which are located at one end of the time
dimension of interpretation, the evolutive end. There are thus other interpretive
results, which can be mapped at the static end of the time dimension of inter-
pretation. Consequently, evolutive interpretations are in potential conflict with
interpretations located at the static end of the spectrum. A theory for the legiti-
macy of evolutive interpretation thus has to provide a solution for the conflict
within the time dimension of interpretation. The resolution of this conflict must
be in line with the normative commands of the underlying theory of interpreta-
tion. The conflict in the time dimension of interpretation must not be confused
with a conflict between different methods of interpretation. It is rather a conflict
between interpretive directives, which are supposed to guide us in case of conflict
between different interpretations resulting from the previous application of
interpretive methods.
If we picture evolutive interpretation as part of the time dimension, we can
also see more clearly the first feature which I have identified above, namely that
30 See, eg, Wróblewski (n 12) 105; Malgosia Fitzmaurice, ‘Interpretation of Human Rights Treaties’
in Dinah Shelton (ed), The Oxford Handbook of International Human Rights Law (Oxford, Oxford
31 Wróblewski (n 12) 105.
32 Senden (n 5) 146.
33 Peter Häberle, ‘Zeit und Verfassung’ in Ralf Dreier (ed), Probleme der Verfassungsinterpretation:
Dokumentation einer Kontroverse (Baden-Baden, Nomos, 1976) 306.

34 ibid 316–17.
Static Interpretation as the Parameter for Evolutive Interpretation 23
it forms part of a normative theory of interpretation. It provides guidance for

the choice among a plurality of interpretive results in the time dimension. When
transferred to the language of human rights interpretation, the time dimension
of interpretation displays interpretive results, of which some are closer to the
human rights conceptions at the time of enactment (static) and others are closer
to the conceptions at the time of the interpretation (evolutive). It needs to be
specified, though, that in the course of time, ‘static’ conceptions do not solely
refer to the time of enactment anymore, but also to later developments, such as
established case law of the Court. Whenever a court such as the ECtHR opts
for an interpretation which can be mapped at the end of evolutive interpreta-
tion in the time dimension spectrum, it decides to choose this end of the time
dimension over the other. This choice requires justification.
Picturing evolutive interpretation on the time dimension of interpretation
thus leaves us no choice but to study evolutive interpretation in connection
with static interpretation. This correlation must not be confused with other
static–dynamic dichotomies in the literature, such as the theory of static and
dynamic natural law by Verdross. He sees static natural law as a set of univer-
sal moral principles which may be concretised in specific contexts as secondary
or dynamic natural law, eg through positive law.35 This leads to a hierarchical
structure between the two set of norms, in which the principles of the dynamic
natural law flow from the principles of static natural law. While the former are
subject to constant change, the latter remain stable.36 This stands in contrast to
the static–dynamic dichotomy in the time dimension of interpretation, in which
there is no hierarchy between static and dynamic interpretations, but only in
relation to the normative interpretive theory in which they are embedded.
III. STATIC INTERPRETATION AS THE PARAMETER

FOR EVOLUTIVE INTERPRETATION
The third element is probably the most challenging element of the concept. It is
clear by now that evolutive interpretation amounts to a change in interpretation
over the course of time. However, it remains unclear which parameter applies to
measure this ‘change’.
If we look at a conceptualisation of evolutive interpretation by Jean-Paul
Costa, former president of the ECtHR, it appears that multiple categories of
‘change’ are taken into account by evolutive interpretation: ‘The text should be
interpreted … by adapting it to the changes that have taken place over time – to
changes in society, in morals, in mentalities, in laws, but also to technological
35 Alfred Verdross, Statisches und dynamisches Naturrecht (Freiburg im Breisgau, Rombach,
1971) 113.
36 ibid 116.
innovations and scientific progress’.37 This has led some authors to differenti-
ate between different intensities of evolutive interpretations depending on the
category of change the interpretation refers to.38 They argue for a lower degree
of intensity of evolutive interpretation if it just takes into account new ‘social
facts’. New social facts in this conception amount to technological or scien-
tific developments.39 This would be the case if one applied the right to freedom
of expression to the context of the internet, a new technology which was not
yet known at the time of enactment.40 This form of evolutive interpretation is
usually not deemed to constitute a genuine change of meaning and is thus widely
accepted.41 These authors argue for a higher intensity of evolutive interpretation
if it refers to an evolution in ‘moral values’.42 This form of evolutive interpreta-
tion is more contentious in the academic debate. This is considered to amount
to a genuine departure from the intended meaning of a norm.43 The ECtHR’s
reasoning regarding the equal treatment of children born in or out of wedlock
serves as an example.44 Consequently, developments in social facts and develop-
ments in moral values constitute the two poles of an intensity scale of evolutive
interpretation, reaching from narrow to broad.45 Whether this differentiation
in intensities between changes in social facts and moral values is meaningful is
questionable,46 but more importantly, it still leaves us with the question how we
can distinguish between evolutive and static interpretations.
Bridging this question to my previously identified features of evolutive inter-
pretation, I can rephrase the question: how are we to map an interpretation
as static or evolutive in the time dimension? To tell whether an interpretation
departs from static interpretation and can be characterised as evolutive, we need
to define static interpretation first.47 Therefore, evolutive interpretation must
37 Jean-Paul Costa, ‘Introductory Remarks’ in European Court of Human Rights (ed), Dialogue
Between Judges: What Are the Limits to the Evolutive Interpretation of the Convention? (Strasbourg,
Council of Europe Publishing, 2011) 5.
38 These differentiations are visible in the ‘living constitution’ debate: Mark D Greenberg and
Harry Litman, ‘The Meaning of Original Meaning’ (1998) 86 Georgia Law Journal 568, 598f. See
also Senden (n 5) 148.
39 Aileen Kavanagh, ‘The Idea of a “Living Constitution”’ (2003) 16(1) Canadian Journal of Law
and Jurisprudence 55, 80.

40 In the American debate, Antonin Scalia also draws a distinction between these two poles,
although not as analytically clear: Antonin Scalia, ‘Common-Law Courts in a Civil-Law System: The
Role of United States Federal Courts in Interpreting the Constitution and Laws’ in Amy Gutmann
and Antonin Scalia (eds), A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ,
Princeton University Press, 1997) 45.
41 Kavanagh (n 39) 82.
42 ibid 80–81; Scalia (n 40) 45. For Scalia, only the high-intensity pole seems to refer to the concept
of a ‘living Constitution’ or evolutive interpretation.

43 Senden (n 5) 147–48, summarising contributions of Scalia, Kavanagh and Roosevelt.
44 Marckx v Belgium Series A no 31 (1979).
45 Greenberg and Litman (n 38) 603f. See also Kavanagh (n 39) 80.
46 See also Kavanagh (n 39) 82.
47 I want to thank George Letsas for raising this point with me.
Static Interpretation as the Parameter for Evolutive Interpretation 25
not be analysed alone, but always with an eye to the opposing end in the time
dimension of interpretation, being static interpretation.48
Letsas provides further insights on what this parameter for differentiating
between static and evolutive interpretation could be: ‘The use of present-day
developments and standards in the Council of Europe as a counterweight to the
moral climate prevailing in the respondent state is the central feature of evolutive
interpretation as applied by the old Court’.49 According to this understanding, it
is thus the ‘moral climate in the respondent state’, which is measured against the
moral climate in the CoE. ‘Static’ in this conception is thus the moral state of the
art in the member state, which lags behind the European moral development.
The underlying premise is that the human rights in the ECHR as moral rights
are not able to develop further as they only evolve towards the objective core of
human rights as moral rights.50 According to Letsas, therefore, the yardstick for
development needs to be ‘external’ to the Convention system, hence in the legal
systems of the member states of the CoE.
I think, however, that this is only one side of the coin. Although I agree with
the concept of human rights as moral and legal rights,51 I do see room for evolu-
tion within the rights set forth in the Convention. The starting point of this
consideration is the highly interpretive character of law in general, and human
rights in particular. As Barak rightly states, law cannot be applied without
interpretation.52 Human rights treaties are an attempt to transfer moral rights
into positive law, and as such they remain highly abstract.53 Given the high level of
abstraction of human rights norms such as those proclaimed in the Convention,
the judiciary is urged not only to specify the meaning of these abstract rights, but
first and foremost to specify the corresponding duties in specific contexts.54 The
specification of human rights duties is a crucial aspect of international human
rights adjudication, which necessitates a law-making function of international
human rights courts.55 The concrete obligations corresponding to human rights
48 Compare Robert Post’s identification of a ‘symmetry’ and ‘structural similarity’ between
what he calls ‘historical interpretation’ and ‘responsive interpretation’: Robert Post, ‘Theories of
Constitutional Interpretation’ (1990) 30 Representations 13, 28–29.
49 Letsas, ‘The ECHR as a Living Instrument’ (n 2) 112.
50 George Letsas, ‘Strasbourg’s Interpretive Ethic: Lessons for the International Lawyer’ (2010)
21(3) European Journal of International Law 509, 530f.

51 For a more thorough discussion of the concept of human rights followed in this book, see
Chapter 1.
52 Aharon Barak, The Judge in a Democracy (Princeton, NJ, Princeton University Press, 2006) 17.
53 Robert Alexy, ‘Menschenrechte ohne Metaphysik’ (2004) 52(1) Deutsche Zeitschrift für
Philosophie 15, 16.

54 Samantha Besson, ‘Legal Philosophical Issues of International Adjudication: Getting Over
the Amour Impossible between International Law and Adjudication’ in Cesare Romano, Karen J
Alter and Yuval Shani (eds), The Oxford Handbook of International Adjudication (Oxford, Oxford
55 ibid.
can never be predefined, but can only be specified in a concrete situation.56 This
corresponds to Alexy’s characterisation of human rights as abstract rights which
are in need of further concretisation in concrete contexts.57 Consequently, the
justification of human rights always precedes the justification of the obligations
which come with this right.58 As Beitz and Goodin have put it in discussing
Shue’s theory of basic rights:
[W]e might say that ‘standard threats’ are those ‘ordinary and serious but remediable’
potential interferences that can reasonably be expected to arise in the normal circum-
stances of human social life. … what counts as an ‘ordinary and serious’ potential
interference to any particular type of action may be different in one society or at
one historical moment rather than another. As a result, basic rights have different
institutional requirements in different social contexts.59
Beitz and Goodin thus perceive human rights to give rise to different obliga-
tions in different contexts. Forst arrives at the same result when arguing that
his constructivist conception of human rights distinguishes between ‘moral
constructivism’, which defines rights abstractly, and ‘political constructivism’,
which puts rights into their historical and social context.60 He argues that
[t]he main reason why moral constructivism must be accompanied by and integrated
with political constructivism is that, since moral construction can only lead to a very
general list of rights for which we can assume that no normatively acceptable reasons
count against their validity, these rights can only be concretely justified, interpreted,
institutionalized, and realized in social contexts, that is to say, only within a legally
constituted political order.61
Consequently, human rights, and especially their corresponding duties, must

primarily be justified in concrete social contexts and not in abstract terms.62
Given the context dependence of concrete human rights obligations, they are
thus dynamic by nature.63
These considerations lead to my argument that the yardstick for measuring
change goes beyond Letsas’ proposal of the moral views in the member states.
56 Samantha Besson, ‘Justifications’ in Daniel Moeckli, Sangeeta Shah and Sandesh Sivakumaran
and others (eds), International Human Rights Law (3rd edn, Oxford, Oxford University Press,
2018) 29.
57 Robert Alexy, ‘Die Institutionalisierung der Menschenrechte im demokratischen
Verfassungsstaat’ in Stefan Gosepath and Georg Lohmann (eds), Philosophie der Menschenrechte
(Frankfurt am Main, Suhrkamp, 2007) 253–54.
58 Neil MacCormick, ‘Rights in Legislation’ in Peter MS Hacker (ed), Law, Morality, and Society:
Essays in Honour of H. L. A. Hart (Oxford, Clarendon Press, 1977) 201.

59 Charles R Beitz and Robert E Goodin (eds), Global Basic Rights (Oxford, Oxford University
Press, 2011) 10.

60 Rainer Forst, The Right to Justification: Elements of a Constructivist Theory of Justice (Jeffrey
Flynn trans, New York, Columbia University Press, 2012) 213.

61 ibid 218.
62 ibid.
63 Besson, ‘Justifications’ (n 56) 29.
Another random document with
no related content on Scribd:
“A satisfying combination,” said Cheriton. “I trust the presence of my
ward, Miss Perry, does not retard the progress of your artistic
labors?”
“Quite the contrary, I assure you,” said Jim, with excellent politeness.
“I am glad of that,” said Cheriton. “But as you may have already
discovered, Miss Perry has quite the feeling for art.”
“Yes,” said Jim, perhaps conventionally, “I am sure she has.”
“It is a very remarkable case of heredity. You see, my dear Lascelles,
Gainsborough painted her great-grandmamma.”
“So I understand,” said Jim, with great solemnity.
“It is a great pleasure to me, my dear Lascelles, that Miss Perry’s
taste in art is so sure. We go to the National Gallery together, hand-
in-hand as it were, to admire the great Velasquez.”
“He is a sweet,” said Miss Perry.
“And, my dear Lascelles, we profoundly admire the great Rembrandt
also.”
“He is a sweet too,” said Miss Perry.
“And, my dear Lascelles, together we share—Miss Perry and I—a
slight distrust of the permanent merit of Joseph Wright of Derby. The
fact is, Joseph Wright of Derby somehow fails to inspire our
confidence. One can understand Joseph Wright of Sheffield perfectly
well; or even perhaps—mind, I do not say positively—Joseph Wright
of Nottingham; but I put it to you, Lascelles, can one accept Joseph
Wright of Derby as belonging to all time?”
“I agree with you,” said Jim. “Yet was there not once an immortal
born at Burton-on-Trent?”
“I never heard that there was,” said Cheriton, with an air of pained
surprise. “And that is a matter upon which I am hardly open to
conviction. By the way, Lascelles, which of England’s luscious
pastures had the glory of giving birth to your genius?”
As a preliminary measure Jim Lascelles showed Miss Perry his boot.
“I was born,” said Jim, modestly, yet observing that the blue eyes of
Miss Perry were adequately fixed on his boot, “at a little place called
Widdiford, in the north of Devon.”
“Yes, of course,” said Cheriton, graciously; “I ought to have
remembered, as your father and I were at school together. I
remember distinctly that it was the opinion of the fourth form
common room that the finest clotted cream and the finest strawberry
jam in the world came from Widdiford.”
“It is almost as nice at Slocum Magna,” said Miss Perry, in spite of
the covert threat that was still lurking in Jim’s outstretched boot.
“Quite so,” said Cheriton. “Ha, happy halcyon days of youth, when
the cream was really clotted and the strawberries were really ripe!
But I seem to remember that Widdiford is remarkable for something
else.”
Miss Perry was prepared to enlighten Lord Cheriton, but Jim’s boot
rose ferociously.
“Stick paw in Mouth Piece,” Jim whispered truculently, “and merely
think of cream buns.”
“Widdiford,” said Cheriton, “let me see. In what connection have I
heard that charmingly poetic name? Ah, to be sure, I remember—
Widdiford is the place at which they have not quite got the railway,
don’t you know. Miss Araminta, is not that the case?”
“Yes,” said Miss Perry; “but it is only three miles away.”
“And what is the proximity,” said Cheriton, a little dubiously it is to be
feared, “of Widdiford to Slocum Magna?”
“The best part of two miles,” said Jim Lascelles, boldly taking the bull
by the horns. “Quite a coincidence, isn’t it, that we should have lived
at the Red House at Widdiford, and that Miss Perry’s papa should
have lived at the Parsonage, at Slocum Magna? In fact, I seem to
remember Miss Perry or one of her sisters as quite a tot of a girl
sitting as good as pie in the vicarage pew.”
It was here that Jim’s boot did wonders. Miss Perry was simply
besieged by voices from the upper atmosphere beseeching her to
give the whole thing away completely. She refrained, however. Her
respect for Jim’s boot enabled her to continue sitting as good as pie.
That being the case, let us offer this original piece of observation for
what it is worth. Cream buns are remarkably efficient in some
situations, while an uncompromising right boot is equally efficient in
others. To Jim Lascelles belongs the credit of having assimilated
early in life this excellent truth.
Cheriton turned to see what progress Jim Lascelles had made with
his labors.
“Very good progress, Lascelles,” said he. Yet something appeared to
trouble my lord. “Upon my word,” said he, “either my eyesight
betrays me or the color of your girl’s hair is yellow.”
“Is it?” said Jim Lascelles, innocently. “Yes, so it is, as yellow as the
light of the morning.”
“The duchess’s hair is auburn, unmistakably.”
“Why, yes,” said Jim; “but really, don’t you think yellow will be quite
as successful?”
Cheriton gazed at Jim Lascelles in profound astonishment.
“My dear fellow,” said he, “I hope you understand what you are
commissioned to do. You are commissioned to make a precise and
exact copy of Gainsborough’s Duchess of Dorset for Cheriton
House, not to perpetrate a tour de force of your own. Upon my word,
Lascelles, that hair is really too much. And the set of the hat, as far
as one may judge at present, certainly differs from the original. I am
sorry to say so, Lascelles, but really I think in the interests of all
parties it would be well if you started again.”
Jim put his hands in his pockets. Upon his handsome countenance
was a very whimsical if somewhat dubious expression.
“Lord Cheriton,” said he, solemnly, “the truth is, if I could have
afforded to lose a cool hundred pounds, which I don’t mind saying is
more than the whole of what I made last year, I should not have
accepted this commission. As I have accepted it I shall do my best;
and if the results are not satisfactory I shall not look for
remuneration.”
“Well, Lascelles,” said his patron, “that is a straightforward
proposition. I dare say it is this confounded French method of looking
at things that has misled you so hopelessly. ’Pon my word, I never
saw such hair, and Gillet never saw such hair either. It is enough to
make Gainsborough turn in his grave. It is most providential that I
happened to look in. Take a fresh piece of canvas and start again.”
Jim Lascelles laid his head to one side with a continuance of his
whimsical and dubious air. There was no doubt that the yellow was
extremely bold and that the hair of the duchess was auburn.
Yet what of the cause of the mischief? There she sat on the sofa in
her favorite pose, blissfully unconscious of the trouble she had
wrought, for there could be no doubt whatever that her thoughts
were of cream buns. And further, it seemed to Jim Lascelles that
there could be no doubt either that her hair had been painted by the
light of the morning. Cheriton, however, was too much preoccupied
with the duchess to observe that fact.
“My dear Miss Araminta,” said he, “as this is a really fine morning,
and this is really the month of May, let us stroll into the park and
watch young England performing maritime feats on the Serpentine.
And after luncheon, if the weather keeps fine, we will go to the
circus.”
“What fun!” said Miss Perry.
CHAPTER XII
JIM LASCELLES TAKES A DECISIVE STEP
CAROLINE CREWKERNE’S “Wednesdays” had not been so

thronged for many years past. They had been in their heyday twenty
years earlier in the world’s history, when the spacious mansion in Hill
Street was the fount of the most malicious gossip to be obtained in
London. But the passing of the years had bereft Caroline of
something of her vigor and of even more of her savoir faire. She had
grown difficult and rather out of date.
However, it had recently been decreed in the interests of human
nature that Caroline Crewkerne should come into vogue again.
People were to be seen at her “Wednesdays” who had not been
seen there for years.
There was George Betterton for one. And the worldly wise, of
course, were very quick to account for his presence, and to turn it to
pleasure and profit. Cheriton and he were both popular men; and
about the third week in May two to one against George and three to
one against Cheriton were taken and offered.
“Cheriton is the prettier sparrer,” said students of form, “but Gobo, of
course, has the weight.”
“I assure you, my dear,” said a decidedly influential section of the
public, “the creature is a perfect simpleton. I assure you she couldn’t
say ‘Bo!’ to a goose. It is inconceivable that two men as old as they
are and in their position should make themselves so supremely
ridiculous. And both of them old enough to be her father.”
“Caroline Crewkerne is behind it all,” said the philosophical. “Her
hand has lost nothing of its cunning. Really it is odious to aid and
abet them to make such an exhibition of themselves.”
It is regrettable, all the same, to have to state that the exhibition was
enjoyed hugely. And when the Morning Post announced that on a
certain evening the Countess of Crewkerne would give a dance for
Miss Perry, there was some little competition to receive a card.
Cards were liberally dispensed, but when they came to hand many
persons of the quieter and less ostentatious sort found that a little fly
had crept into the ointment. “Fancy dress” was to be seen written at
the top in a style of caligraphy not unworthy of Miss Pinkerton’s
academy for young ladies. Miss Burden had been commanded to do
this at the eleventh hour.
“That man Cheriton is responsible for this,” complained those who
desired neither the expense nor the inconvenience of habiting
themselves in the garb of another age, “because he thinks he looks
well in breeches.”
That may have been partly the reason; but in justice to Cheriton it is
only right to state that, unless he had found a weightier pretext to
advance, Caroline Crewkerne would never have assented to this
somewhat eccentric condition. Indeed, it was only after a heated
argument between them that Cheriton contrived to get his way.
“You must always be flamboyant and theatrical,” grunted Caroline,
“at every opportunity. All the world knows you look well in breeches.”
“I protest, my dear Caroline,” said the mellifluous Cheriton; “it is
merely my desire to put another plume in your helmet. The creature
will look ravishing as Araminta, Duchess of Dorset. Pelissier shall
come this afternoon to copy the picture de haut en bas.”
“It has been copied once already.”
“Ah, no! It supplied an idea or two merely. When you see it in every
detail precisely as Gainsborough saw it, you will observe the
difference.”
“People must be as sick of the picture as I am by this time.”
“Nonsense! They are only just beginning to realize that you’ve got a
picture.”
Let it not be thought an injustice to Cheriton if one other motive is
advanced for his insistence upon a somewhat singular course. When
the cards of invitation had been duly issued he rather let the cat out
of his bag.
“Of course, Caroline, you would be obstinate,” said he, “and have
your own way about that fellow George Betterton, but you know as
well as I do that in any kind of fancy clothes he looks like a boa-
constrictor.”
At first Cheriton professed himself unable to decide whether he
should appear as Charles II. or as John Wesley. In the end, however,
he decided in favor of the former. Miss Burden had not been so
excited for years. The subject filled her thoughts day and night for a
whole week after the momentous decision was taken. She then
submitted one day to his lordship at luncheon a peculiarly difficult
problem.
“Not a problem at all,” said he. “Simplest thing in the world, my dear
lady. There is only one possible person you can go as.”
“I had been thinking of Mary Queen of Scots,” said Miss Burden,
hardly daring to hope that Lord Cheriton would give his sanction.
“Mary Queen of who!” snarled Caroline.
“No, my dear Miss Burden,” said the eminent authority, “the only
possible person you can go as is Katharine of Aragon.”
“Nonsense, Cheriton!” said Caroline. “I shall not permit Burden to
appear in any such character. A Jane Austen spinster will be far
more appropriate and far less expensive.”
“My dear Caroline,” said Cheriton, “how it would help everybody if
you did not insist on airing your views upon matters of art! Do you
wish Miss Burden to forfeit entirely her natural distinction?”
Miss Burden blushed most becomingly at his lordship’s remark.
“I was not aware that she had any,” said the ruthless Caroline.
“Upon my word, Caroline, even I begin to despair of you. I assure
you Miss Burden is quite one of the most distinguished-looking
women of my acquaintance.”
Miss Burden looked almost as startled as a fawn. Cheriton had never
seen her display so much color as when he made her a little bow to
attest his bona fides. It was rather a pity that his smile unconsciously
resembled that of a satyr; not, however, that it really mattered, for
although the ever-observant Caroline duly noted it Miss Burden did
not.
“It is twenty-five minutes past two, Lord Cheriton,” said Miss Perry,
putting a sugar-plum in her mouth, “and you have promised to take
me to the circus.”
“Cheriton,” said the old lady, “I forbid you to do anything of the kind.
To spend three afternoons a week at a circus is outrageous.”
“They are so educational,” said Cheriton. “Develop the mind. Show
how intelligence can be inculcated into the most unlikely things.
Horses good at arithmetic, dogs playing whist, cats indulging in
spiritualism. Very educational indeed. Clown imitating monkey in
lifelike manner. Illustration of the origin of species. One more sugar-
plum, my dear Miss Araminta, and then Marchbanks will summon a
taximeter, if possible, with a tonneau painted pink.”
“Gobo is going to take me to the Horse Show to-morrow,” Miss Perry
announced.
“Who, pray, is Gobo?” Aunt Caroline and Lord Cheriton demanded in
one breath.
“He asked me to call him Gobo,” said Miss Perry, helping herself
calmly to sugar-plums, “and I asked him to call me Goose.”
Cheriton’s countenance was unmistakably a study. The same might
be said of that of Aunt Caroline.
“My dear young lady,” said Cheriton, “this cannot be. One of the
most dangerous men in London. Really, Caroline, you must forbid
that old ruffian the house. As for the Horse Show to-morrow, it is
clearly out of the question.”
“I promised Gobo,” said Miss Perry, “and I don’t like to break a
promise; do you?”
“My dear young lady, you are much too young and inexperienced to
make a promise, let alone to keep one. I speak as I feel sure your
papa would do were he in my place, and as I know I should do were
I in the place of your papa. Your aunt is quite of that opinion; I speak
for her also. You must not call that man Gobo, he must not call you
Goose, and as for the Horse Show, it is out of the question.”
“But everybody calls me Goose,” said Miss Perry, “because I am
rather a silly.”
“Caroline,” said Cheriton, with much gravity, “if you will take the
advice of your oldest friend you will forbid that man the house. My
dear Miss Araminta, let us try to obliterate a very disagreeable
impression by spending a quietly educational afternoon at the
circus.”
When on the morning of the great day of the fancy ball Miss Perry
entered the presence of Jim Lascelles as the faithful embodiment,
down to the minutest particular, of Gainsborough’s masterpiece, that
assiduous young fellow was seized with despair. It took the form of a
gasp.
“Goose Girl,” said he, “I shall have to give up coming here. I paint
you all the morning, I think of you all the afternoon and evening, and
I dream of you all night. You know you have rather knocked a hole in
my little world.”
“There will be ices to-night,” said Miss Perry. “Lord Cheriton almost
thinks pink ices are nicest.”
“Confound Lord Cheriton,” said Jim, with unpardonable bluntness,
“and confound pink ices!”
“I thought I would just put on my new frock,” said Miss Perry, “to see
if you think it is as nice as you think the lilac is.”
“I have no thoughts at all this morning,” said Jim Lascelles, “about
your new frock or about anything else. My mind is a chaos, my
wretched brain goes round and round, and what do you suppose it is
because of?”
“I don’t know,” said Miss Perry.
“It is because of you,” said Jim Lascelles. “Look at that canvas
you’ve ruined. Yellow hair—Gainsborough hat—lilac frock—full-
fledged cream-bun appearance. You will lose me my commission,
which means a cool hundred pounds out of my pocket, and my
mamma has denied herself common necessaries to pay for my
education. Goose Girl,” Jim Lascelles concluded a little hoarsely, “I
am growing afraid of you. You are a sorceress. Something tells me
that you will be my ruin.”
“I wish you had seen Muffin’s mauve,” said Miss Perry, who showed
very little concern for Jim’s ruin.
“I have not the least desire to see Muffin’s mauve,” said Jim
Lascelles. “In fact, I thank the God who looks after poor painters—if
there is such a Deity, which I take leave to doubt—that I have not
seen it. But I intend to ask you this question: What right have you,
Goose Girl, to grow so extravagantly perfect, to get yourself up in
this ravishing and entrancing manner, and then to come to ask a
poor wight of a painting chap, who is daubing away for dear bread
and butter, whether he thinks your new frock is as nice as the lilac
was?”
“Muffin’s mauve——” said Miss Perry.
“Answer me,” said Jim, sternly. “You can’t. You are a sorceress. You
are a weaver of spells. Well, it so happens that I am susceptible to
them. I am going to take a decisive step. Goose Girl, it is my
intention to kiss you.”
Without further preface or ado Jim Lascelles stepped towards Miss
Perry with extended arms and eyes of menace. He hugged her
literally, new frock and all, in the open light of the morning; and
further, he gave her one of the most resounding busses that was
ever heard in that dignified apartment.
“Get rid of that if you are able,” said he, brazenly. “And now sit there,
as good as pie, while I put that new gown upon canvas.”
Miss Perry did as she was told in a manner that rather implied that
she approved decidedly of the whole proceedings.
“Goose Girl,” said Jim, attacking the canvas, “you will either make
me or mar me. Sometimes I feel it might be the former, but more
often I am convinced it will be the latter.”
“Muffin’s mauve cost a lot of money,” said Miss Perry.
“Paws down,” said Jim. “The question now for gods and men is, can
that hair and that frock live together?”
Jim took up a little looking-glass and turned his back upon the
canvas. He sighed with relief.
“Yes, they can by a miracle,” said he. “And yet they out-Gillet Gillet.”
“What will you be to-night, Jim?” asked Miss Perry.
“Achilles, sulking in my tent.”
“Where will you put your tent?” said Miss Perry. “One can’t dance in
a tent. And what will you do when you are sulky?”
“Gnash my teeth and curse my luck.”
“I will dance with you twice if you would like me to,” said Miss Perry
with charming friendliness.
“I shall not be there,” said Jim, whose studied unconcern was rather
a failure.
“Not be there!” said Miss Perry, with consternation.
“Aunt Caroline has not axed me.”
It was some kind of solace to Jim Lascelles that dismay and
incredulity contended upon the usually calm and unruffled
countenance of Miss Perry.
“Miss Burden has forgotten you,” said she. “I must speak to her.”
Miss Perry rose for that purpose.
“Sit down, you Goose,” Jim commanded her. “Don’t speak a word
about it to anybody, unless you want to get me sacked from the
house. I am here on sufferance, a poor painting chap, copying a
picture to get bread and cheese; and this ball to-night is being given
by the Countess of Crewkerne, for her niece Miss Perry.”
“But, Jim——”
“Goose Girl,” said Jim, “keep Mouth Piece immovable. Move not the
Chin Piece, the Young Man said. Think of cream buns.”
“But, Jim——” said Miss Perry.
CHAPTER XIII
HIGH REVEL IS HELD IN HILL STREET
ALL the same, Miss Perry did not dance twice with Jim Lascelles
that evening. For Jim took his mother to the Theatre Royal, at
Brixton, to witness a performance of that excellent old-world comedy,
“She Stoops to Conquer.”
He did not appear to enjoy it much. He hardly laughed once, and his
mother remarked it.
“What is the matter, my son?” said she. It ought to be stated that
Jim’s mother was absurdly young to occupy the maternal relation to
a great hulking fellow like Jim.
“There is a ridiculous girl in my head,” said he, “who is above me in
station.”
“That Goose?” said Jim’s mother, a little contemptuously, it is to be
feared.
“Yes, Señora,” said Jim. “She is turning my brain rather badly.”
Not unnaturally Jim’s mother was amused that Jim should be so
serious.
“If only I had enough money to buy back the Red House at
Widdiford,” sighed Jim, “I believe I could cut out them all.”
“She was never able to resist the orchard, and the south wall, and
the strawberry beds,” Mrs. Lascelles agreed.
“I never saw such a creature,” said Jim. “Those lilac frocks and those
Gainsborough hats are maddening.”
“Well, laddie,” said Jim’s mother, “you must paint her and make her
and yourself famous.”
“She is famous already,” said Jim. “Worse luck. She is a nine days’
wonder in Mayfair, and certain to marry a duke.”
“That Goose!” said Jim’s mother.
“Yes,” said Jim; “it sounds ridiculous, but it is perfectly true.”
“Well, my son,” said Jim’s mother, who believed profoundly in her
offspring, “just paint her and see what comes of it.”
While Jim Lascelles lay that night with his head on his arm, dreaming
of the Goose Girl, high revel was held at the house of Caroline
Crewkerne, in Hill Street, W. All ages and both sexes were gathered
in the garb of their ancestors in the spacious suite of rooms on the
second floor. From the moment that the first seductive strains were
put forth by Herr Blaum’s Green Viennese Band, and his Excellency
the Illyrian Ambassador, in the guise of Henri Quatre or the Duke of
Buckingham—nobody was quite sure which—accompanied by Diana
of Ephesus, a bread-and-butter miss who looked much too young to
be a duchess, went up the carpetless blue drawing-room, which
seemed at least three times the size it did on ordinary occasions, as
indeed was the case, there was no doubt that Caroline Crewkerne
was going to have a great success.
It is not easy to know whether Red Cross Knights, Cardinal
Richelieus, Catherines de’ Medici, and those kinds of people are
susceptible of thrills; but there was one unmistakably when George
Betterton, in the character of a Gentleman of the Georgian Era, took
the floor with Araminta, Duchess of Dorset, by Gainsborough, upon
his arm.
The less responsible spirits directed their gaze to Charles II. The
Merry Monarch was engaged in amiable converse with his hostess,
who, habited in an Indian shawl, the gift of her Sovereign, and a
jeweled turban presented to her by the Shah of Persia during his last
visit to this country, together with the insignia of the Spotted Parrot
duly displayed round her neck, made her, in the opinion of many, a
very tolerable representation of a heathen deity. As a Gentleman of
the Georgian Era and Araminta, Duchess of Dorset, by
Gainsborough, came down the room in a somewhat inharmonious
manner, owing to the decidedly original ideas of the former in regard
to the art he was practicing, the amiable and agreeably cultivated
voice of Charles II. soared easily above the strains of the waltz and
the frou-frou of the dancers.
“Yes,” said that monarch, “the Georgian Era is sufficiently obvious;
but can anybody tell me what has happened to the Gentleman?”
The Georgian Era went its victorious way however, gobbling
decidedly, perspiring freely, holding Gainsborough’s Duchess in a
grip of iron, and slowly but surely trampling down all opposition with
the greatest determination. When, with coxcomb ensanguined, but
with a solemn gobble of triumph, he came back whence he started, a
slight but well-defined murmur of applause was to be heard on every
hand.
“Georgian Era wins in a canter,” one of the knowing fraternity could
be heard to proclaim. “Evens on Gobo against the field.”
“Duchess,” said the Georgian Era, with a bow to his fair partner, who
looked as cool as a cucumber, “you deserve an ice.”
“Yes,” said Araminta, Duchess of Dorset, with grave alacrity, “a pink
one, please.”
“Bad form,” said the Second Charles; “decidedly a breach of
manners to address her as duchess in the circumstances. But what
can one expect of the Georgian Era!”
The Merry Monarch, with the unmistakable air of the master of the
ceremonies, as indeed he was, proceeded to lead out Katharine of
Aragon, who was seen to great advantage, such was her natural
distinction, and who was that ill-fated queen to the manner born.
“Humph!” said the Heathen Deity. “For a born fool she dances very
well.”
The Second Charles danced like a rather elderly angel with wings.
The young people also were enjoying themselves. Eligible young
men, and not a single one of the other kind had gained admittance,
had each his dance with the fair Araminta, or the fair Daphne, or the
fair Evadne, or the fair Sweet Nell of Old Drury. Of course
Gainsborough’s masterpiece really brooked no rival, except the great
canvas in the left-hand corner, which, in the full glare of the electric
lights, seemed to do her best to dispute the supremacy of her
youthful descendant.
“Yellow hair knocks spots off the auburn,” said an Eldest Son to the
Lynx-Eyed Dowager to whose apron he was very carefully tied.
“A matter of taste,” was the rejoinder. “Yellow is never a safe color. It
is well known that it means doubtful antecedents. They are
beginning the lancers. Go, Pet, and find Mary.”
Pet, who was six feet five, and had leave from Knightsbridge
Barracks until five a.m., claimed the Watteau Shepherdess, a real
little piece of Dresden China, who had forty-six thousand in land and
thirty-six thousand in consols, and would have more when Uncle
William permanently retired from the Cavalry; and who was perfectly
willing to marry Pet or anyone else if her mamma only gave her
permission to do so.
Charles II. sat out the supper dance with the fair Araminta.
“Miss Goose,” said the sagacious monarch, “never dance the dance
before supper if you can possibly avoid it. You will live longer, you
will be able to do ampler justice to whatever fare may be
forthcoming, you will also be able to get in before the squash; and if
the quails run short, as is sometimes the case, it won’t matter so
much as it otherwise might do.”
As far as the Merry Monarch was concerned, however, the
precautions against the squash and the possibility of the quails
running short were wholly superfluous. The pleasantest corner of the
best-situated table had been reserved for him hours before, and all
his favorite delicacies had been duly earmarked.
“Miss Goose,” said the Merry Monarch, “have you had an ice yet?”
“I have had seven,” said Araminta, Duchess of Dorset.
“Pink ones?” asked the Second Charles.
“Five were pink,” said the Duchess, “one was yellow, and one was
green. But I think that pink ones are almost the nicest.”
“I concur,” said the Second Charles.
After supper, before dancing was resumed, some incautious person,
after gazing upon Gainsborough’s masterpiece and subjecting it to
some admiring if unlearned remarks, pulled aside the crimson
curtain which hid from view Jim Lascelles’ half-finished copy.
“Oho!” said the incautious one in a loud voice, “what have we here?
To be sure, a Sargent in the making! Only Sargent could paint that
hair.”
The attention of others was attracted.
“I should say it is a Whistler,” said a second critic.
“A Sargent decidedly,” said a third. “Only he could paint that hair.”
“It is high art, I dare say,” said a fourth, “but isn’t it rather
extravagant?”
“If Gillet were in London,” said critic the fifth, who had more
instruction than all the others put together, “I should say it was Gillet.
As he is not, it might be described as the work of a not unskillful
disciple.”
Cheriton stood listening.
“It is the work of a young chap named Lascelles,” said he; “the
coming man, I’m told.”
Nobody had told Cheriton that Jim Lascelles was the coming man,
and not for a moment did he believe that he was; but he was a
member of that useful and considerable body which derives a kind of
factitious importance from the making of imposing statements. He
felt that it reacted upon his own status to announce that a young
chap named Lascelles was the coming man when not a soul had
heard of the young chap in question.
“I must remember the name,” said a broad-jowled marquis from
Yorkshire, who had come up in time to hear Cheriton’s statement,
and who greatly preferred to accept the judgment of others in the
fine arts rather than exercise his own. “I should like him to paint
Priscilla.”
“The very man to paint Priscilla,” said Cheriton, with conviction. And
this, be it written to Cheriton’s credit, was genuine good nature.
“What is the subject?” said the first critic.
“Why, can’t you see?” said a chorus. “It is Caroline Crewkerne’s
Gainsborough.”
“Which of ’em?”
“The yellow-haired one, of course.”
Cheriton screwed his glass in his eye. He had been the first to detect
that the color of the hair was yellow, and yet for some strange reason
the solution of the mystery had not until that moment presented itself
to him.
“What damned impertinence!” said he.
“Anybody been treading on your corns, Cheriton?” asked several
persons.
“Not exactly. But, do you know, I commissioned that fellow Lascelles
to make a copy of Araminta, Duchess of Dorset, for Cheriton House.”
“And he copies the wrong Araminta!” came a shout of laughter.
There was really no need to shout, but immediately after supper that
is the sort of thing that happens sometimes. “A good judge too.”
“Gross impertinence. I think I shall be quite justified in repudiating
the whole transaction.”
“Quite, Cheriton,” said the marquis, with a very obvious wink at the
company and preparing to jest in the somewhat formidable Yorkshire
manner. “But it is easily explained. Young fellow got a little mixed
between Gainsborough’s Araminta, Duchess of Dorset, and Nature’s
Araminta, Duchess of Brancaster. Very natural mistake—what?”
The arrival upon the scene of the Georgian Era and the Heathen
Deity, the latter walking quite nimbly with very little aid from her stick,
set the circle of art critics in further uproar.
“Who pulled aside the curtain?” demanded the mistress of the
house. “Cheriton, I suspect you.”
“It is my picture, anyhow,” said Cheriton, coolly, although he felt the
game was rather going against him.
“It is not at all clear to my mind that it is your picture,” said the sharp-
witted Caroline, to the delight of everybody. “You send a man to copy
my Gainsborough, and he copies my niece.”
“A very natural error,” said the marquis, “as we have just explained to
Cheriton.”
The Georgian Era was seen to grow uneasy. He began to fumble in
his Georgian costume. Obviously he was not quite sure where the
pockets were. At last, however, he was able to produce a pair of
spectacles which he proceeded to adjust.
“Very good likeness,” said he, heavily. “Caroline, when the picture is
finished I should like to purchase it for the Cheadle Collection.”
A salvo of laughter greeted this speech, but to laughter the speaker
was constitutionally oblivious.
“The picture is not Caroline’s, my dear George,” said Cheriton. “The
young fellow is painting it on my commission.”
“Excellent likeness,” said George, tenaciously. “I shall make you a
fair offer, Cheriton, for the Cheadle Collection.”
“I am sorry, my dear George, for the sake of the Cheadle Collection,”
said Cheriton, amiably; “but that picture is not for sale.”
“You are quite right, Cheriton,” said Caroline Crewkerne; “the picture
is not for sale. I gave permission for a copy to be made of my
Gainsborough, not of my niece.”
“It appears to be a question of copyright,” said a wit.
“I hold the copyright in both at present,” said Caroline, in an
exceedingly grim manner.
The strains of the dance began to float through the room. The
younger section of the company had again taken their partners; a
brace of royalties had arrived, yet in spite of that jest and counter-
jest were in the air.
“Cheriton was never in it from the start,” said the marquis, “if you
want my candid opinion.”
“The luckier he,” said the first critic. “What does any man want with a
girl who hasn’t a sou, a country parson’s daughter?”
“Healthy, I should say,” said critic the second. “Comes of a good
stock on the mother’s side.”
“Ye-es,” said a third. “Useful.”
“Finest-looking girl in England,” said a fourth.
“They can both afford to marry her,” said the marquis, “and I will lay
the odds that the better man of the two does.”
“Cheriton gets her in that event.”
“Gobo for a monkey.”
All the time, however, in Another Place, the Master of the Revels—
but, after all, that is no concern of ours.

Ebook A Constitutionalist Approach To The European Convention On Human Rights The Legitimacy of Evolutive and Static Interpretation 1St Edition Lisa Sonnleitner Online PDF All Chapter

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Ebook A Constitutionalist Approach To The European Convention On Human Rights The Legitimacy of Evolutive and Static Interpretation 1St Edition Lisa Sonnleitner Online PDF All Chapter

Uploaded by

Copyright:

Available Formats

A Constitutionalist Approach to the

European Convention on Human Rights

The Inter State Application under the European

Non Refoulement under the European Convention on Human

International Disability Law A Practical Approach to

The Istanbul Convention Domestic Violence and Human

Religion, Human Rights, and the Workplace: Judicial

The United Nations Convention on the Rights of the

Whistleblower Protection by the Council of Europe the

On the Significance of Religion for Human Rights 1st

Hart Studies in Constitutional Theory: Volume 3

2. A New Concept of Evolutive and Static Interpretation���������������������������17

3. The Legitimacy of Evolutive Interpretation Revisited�����������������������������28

III. Evolutive Interpretation and General Principles of

4. The Criticism against Evolutive Interpretation Revisited�������������������������62

6. The Constitutional Nature of the ECHR�����������������������������������������������94

7. Three Basic Constitutional Principles of the ECHR������������������������������ 102

9. The Balancing Model for Evolutive and Static Interpretation��������������� 129

10. External Justification������������������������������������������������������������������������� 139

12. The Right to Assisted Suicide������������������������������������������������������������� 165

13. The Right to Preservation of the Environment������������������������������������ 173

Gäfgen v Germany [GC] EHRR 2010-IV .................................................... 106

Mathieu-Mohin and Clerfayt v Belgium Series A no 113 (1987) ................... 108

Report (A/61/10) of the International Law Commission on its 58th session

1 Marckx v Belgium Series A no 31 (1979).

(Rome, 5–8 November 1975) H/Coll (75)2 22.

women; M.C. v Bulgaria EHRR 2003-XII on criminal prosecution of rape.

From the very beginning, evolutive interpretation has been accompanied by

(Cambridge, Cambridge University Press, 2019) 5.

legitimacy sphere of evolutive interpretation for several reasons. First, while

27 Lisa Sonnleitner, ‘The Democratic Legitimacy of Evolutive Interpretation by the European

Oxford University Press, 2016) 6–7.

120 Law Quarterly Review 49, 78.

conditions of legitimate stagnation in the Convention’s interpretation by means

36 Arguing in the context of American constitutional interpretation: Robert Post, ‘Theories of

Constitutional Interpretation’ (1990) 30 Representations 13, 19.

Philosophy, 2017, https://plato.stanford.edu/archives/sum2017/entries/legitimacy/.

Tübingen, Mohr-Siebeck, 2009) 122.

that it is legitimate in any case concerning the interpretation of the ECHR,

and Jurisprudence 55, 56.

Reports 2009 para 66.

tions, as Chapter 3 will demonstrate.

the constitutional framework for the legitimacy of intertemporal interpreta-

tremendously to the fostering of evolutive constitutional principles since the

I. THE DUAL NATURE OF LAW

Dreier (ed), Probleme der Verfassungsinterpretation: Dokumentation einer Kontroverse (Baden-

II. THE CONCEPT OF HUMAN RIGHTS

The ECHR, as an international human rights treaty, sets up a list of rights

Theory 31, 34.

Flynn trans, New York, Columbia University Press, 2012) 203.

basic right to justiﬁcation.28 It expresses the claim of every individual to be

requirements of reciprocity and generality.

1 Tyrer v UK Series A no 26 (1978) para 31.

Human Rights’ (1999) 42 German Yearbook of International Law 11, 12, fn 3.

I. EVOLUTIVE INTERPRETATION WITHIN A NORMATIVE

The ﬁrst element concerns the very nature of evolutive interpretation as an

identify the meaning of a norm by means of evolutive interpretation. This evalu-

8 Christian Djeffal, Static and Evolutive Treaty Interpretation: A Functional Reconstruction

Non-regression’ in Dean Spielmann (ed), La Convention européenne des droits de l’homme, un

Wróblewski provides a convincing theory of interpretation, which will be used

Beiheft 255, 261.

a normative theory of interpretation consisting of a set of second-level direc-

II. EVOLUTIVE INTERPRETATION AS AN ELEMENT OF THE TIME

2. A New Concept of Evolutive and Static Interpretation��17

3. The Legitimacy of Evolutive Interpretation Revisited��28

4. The Criticism against Evolutive Interpretation Revisited��62

6. The Constitutional Nature of the ECHR��94

7. Three Basic Constitutional Principles of the ECHR�� 102

9. The Balancing Model for Evolutive and Static Interpretation�� 129

10. External Justification�� 139

12. The Right to Assisted Suicide�� 165

13. The Right to Preservation of the Environment�� 173