TY - JOUR

T1 - Hard cases, bad law

T2 - how philosophising could help the ECtHR to achieve completeness and coherence

AU - Letwin, Jeremy

PY - 2022/12/31

Y1 - 2022/12/31

N2 - In this article, I identify instances in which ECtHR judgments have not been sufficiently complete or coherent and explain why the Court would not have been able to achieve sufficient completeness or coherence merely by adopting a "purely pragmatic" solution. I go on to show that it is only by engaging with philosophical thinking about the Convention that the Court could have achieved sufficient completeness and coherence in these instances—and that, although there are valid objections to the ECtHR engaging in philosophical reasoning, the adoption by the Court of a "pluralistic approach" to philosophical reasoning would weaken the force of many of these objections. I conclude that there are sometimes sound reasons for the ECtHR to philosophise.

AB - In this article, I identify instances in which ECtHR judgments have not been sufficiently complete or coherent and explain why the Court would not have been able to achieve sufficient completeness or coherence merely by adopting a "purely pragmatic" solution. I go on to show that it is only by engaging with philosophical thinking about the Convention that the Court could have achieved sufficient completeness and coherence in these instances—and that, although there are valid objections to the ECtHR engaging in philosophical reasoning, the adoption by the Court of a "pluralistic approach" to philosophical reasoning would weaken the force of many of these objections. I conclude that there are sometimes sound reasons for the ECtHR to philosophise.

M3 - Journal article

VL - 2022

SP - 587

EP - 603

JO - European Human Rights Law Review

JF - European Human Rights Law Review

SN - 1361-1526

IS - 6

ER -