Экзамен зачет учебный год 2023 / [Andreas_Fllesdal,_Birgit_Peters,_Geir_Ulfstein]-1

Belgian Linguistic case, concerning the right to education under article 2 of the First Protocol, as well as the principle of non-discrimination under article 14.20 The Court recognised the intrinsically subsidiary nature of its European supervision with respect to regulations of the system of education.21 Thereafter, the experimental spheres of the margin of appreciation were expanded to cover issues of the freedom of peaceful assembly and association under article 11, with specific regard to trade union activities.22

Subsequently, the concept of a margin of appreciation has been spread in a spectacular manner in relation to substantive rights provisions, in particular due process guarantees under articles 5–623 and the ‘personal freedom’ rights under articles 8–11,24 and two supplementary provisions of articles 13 and 14.25 The rationales for the dynamic evolution of this concept were most saliently spelt out in cases addressing the limitation clauses under articles 8–11 and article 1 of the First Protocol.

20The Commission emphasised that the first sentence of art. 2 of the Protocol allows states ‘a certain discretion’ with regard to the measures to be taken to secure the enjoyment of the right guaranteed: ECommHR, Case relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Belgian Linguistic case) (Appl. Nos. 1474, 1677 and 1691/62), Report (Commission), 24 June 1965, Series B, Vol. 3, at 307, para. 401.

21The Court noted as follows:

The right to education guaranteed by the first sentence of Article 2 of the Protocol by its very nature calls for regulation by the State, regulation which may vary in time and place according to the needs and resources of the community and of individuals. It goes without saying that such regulation must never injure the substance of the right to education nor conflict with other rights enshrined in the Convention.

ECtHR, Belgian Linguistic case, para. 5. See also ibid., para. 10.

22The Strasbourg organs allowed the national authorities ‘a free choice of means’ to realise the interests of trade unions: ECtHR, Union of Belgian Police v. Belgium (Appl. No. 4464/ 70), Judgment (Plenary), 27 October 1975, Series A, Vol. 19, para. 39; ECtHR, Swedish Engine Drivers’ Union v. Sweden (Appl. No. 5614/72), Judgment (Chamber), 6 February 1976, Series A, Vol. 20, para. 40; and ECtHR, Schmidt and Dahlström v. Sweden (Appl. No. 5589/72), Judgment (Chamber), 6 February 1976, Series A, Vol. 21, para. 36.

23ECtHR, Engel and Others v. The Netherlands (Article 50) (Appl. Nos. 5100, 5101 and 5102/71; 5354 and 5370/72), Judgment (Plenary), 8 June 1976, Series A, Vol. 22, para. 72.

24The first recourse to this concept was seen in ECtHR, De Wilde, Ooms and Versyp v. Belgium (Vagrancy case) (Appl. Nos. 2832, 2835 and 2899/66), Judgment (Plenary), 18 June 1971, Series A, Vol. 12, para. 93. See also ECtHR, Golder v. UK (Appl. No. 4451/70), Judgment (Plenary), 21 February 1975, Series A, Vol. 18, para. 45 (restrictions on the right to correspondence).

25As is well known, Protocol No. 12 has made art. 14 a stand-alone, substantive right for the states parties to this protocol.

Among them, the Court’s famous dictum in the Handyside case has spelt out the deferential approach that endorsed the latitudes of national discretion in assessing the concept ‘necessary in a democratic society’ under the limitation clause of article 10. More precisely, a national margin of appreciation was recognised in assessing whether there existed ‘pressing social need’ that would warrant interference for the alleged purpose of protecting ‘public morals’:

it is not possible to find in the domestic law of the various Contracting States a uniform European conception of morals. The view taken by their respective laws of the requirements of morals varies from time to time and from place to place, especially in our era which is characterised by a rapid and far-reaching evolution of opinions on the subject. By reason of their direct and continuous contact with the vital forces of their countries, State authorities are in principle in a better position than the international judge to give an opinion on the exact content of these requirements as well as on the ‘necessity’ of a ‘restriction’ or ‘penalty’ intended to meet them. The Court notes at this juncture that whilst the adjective ‘necessary’, within the meaning of Article 10 § 2, is not synonymous with ‘indispensable’ [cf. in Articles 2 § 2 and 6 § 1, the words ‘absolutely necessary’ and ‘strictly necessary’ and, in Article 15 § 1, the phrase ‘to the extent strictly required by the exigencies of the situation’], neither has it the flexibility of such expressions as ‘admissible’, ‘ordinary’ [cf. Article 4 § 3], ‘useful’ [cf. the French text of the first paragraph of Article 1 of Protocol No. 1], ‘reasonable’ [cf. Articles 5 § 3 and 6 § 1] or ‘desirable’. Nevertheless, it is for the national authorities to make the initial assessment of the reality of the pressing social need implied by the notion of ‘necessity’ in this context. Consequently, Article 10 § 2 leaves to the Contracting States a margin of appreciation. This margin is given both to the domestic legislator [‘prescribed by law’] and to the bodies, judicial

amongst others, that are called upon to interpret and apply the laws in force …26

With hindsight, the Handyside judgment has provided the prototype of ‘margin’ analysis not only in the context of the limitation clauses,27 but also in any other context. For that reason, it is only since that cause célèbre that it has become fairly justifiable to consider a margin of appreciation as a ‘doctrine’.

26ECtHR, Handyside v. UK (Appl. No. 5493/72), Judgment (Plenary), 7 December 1976, Series A, Vol. 24, para. 48.

27These include not only the second paragraphs of arts. 8–11, but also the third paragraph of art. 2 of Protocol No. 4. A similar formula can be seen in respect of the right to property guaranteed in art. 1 of the First Protocol and art. 1 of Protocol No. 7.

3. Analysing the circumstances in which the margin of appreciation may be invoked

3.1Overview

Analytically, the main contours of debates on the margin of appreciation take shape in five processes: (i) the process of fact-finding and ascertainment of fact; (ii) the process of interpreting and applying national laws; (iii) the process of evaluating the conceptual parameters of a specific ECHR right and applying them in relation to a specific issue arising from a member state’s concrete (measure to implement) laws; (iv) the process of balancing between an individual person’s right and a public interest ground, including the evaluation of the means to achieve the social ends sought after;28 and (v) weighing in balance two competing rights and freedoms. The second process is related to the question of interpretive disagreements over a specific human rights norm, the profound question that in turn gives rise to judicial discretion. The third process links the first phase of empirical questions with the second phase of delineating the ambit of Convention rights. This process necessitates examining specific (measures of) national laws in the light of the ‘autonomous’ standards of the ECHR rights. The fourth and fifth processes of balancing appear most frequently in the assessment of the limitation clauses appertaining to articles 8–11 ECHR and article 1 of the First Protocol.

3.2The process of fact-finding and ascertainment of fact

The first pattern of the operation of the margin of appreciation is seen in relation to the discretion given to national or local authorities in ascertaining relevant facts because of their greater access to information and social forces at hand.29 Deference to national decisions is corroborated by the comparative advantage of local administrative authorities in fact-finding.30

28Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 917, 935.

29Carozza, ‘Subsidiarity’, at 73; and Judge Dean Spielmann, ‘Allowing the Right Margin the European Court of Human Rights and the National Margin of Appreciation Doctrine: Waiver or Subsidiarity of European Review?’, CELS Working Paper Series, February 2012 (hereinafter Spielmann, ‘Allowing the Right Margin’), available at www.cels.law.cam.ac. uk, at 8–9. In essence, this is what Greer calls the ‘implementation discretion’: S. Greer, ‘Constitutionalising Adjudication under the European Convention on Human Rights’, Oxford Journal of Legal Studies 23 (2003) 405–33 (hereinafter Greer, ‘Constitutionalising Adjudication’), at 423.

30Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 927.

In this respect, the Court has consistently held that ‘it is not normally within the province of the European Court to substitute its own assessment of the facts for that of the domestic courts and as a general rule, it is for these courts to assess the evidence before them’.31 The most salient examples would be the assessment of ‘fact-intensive’ elements. These include a state of emergency that would authorise a member state to invoke the derogation clause under article 15, evidence for criminal convictions, and ‘evaluative’ concepts susceptible of greater room for subjectivity,32 such as sexual propriety and obscenity.33 As a result, arguably the most lax form of review can be exhibited by the Court in those areas.34

Nevertheless, several caveats ought to be entered. Clearly, the assertion that this phase is altogether ‘value-free’ or ‘ideologically neutral or free’35 is contestable. The manner in which empirical data are amassed with the reconstruction of past reality can be susceptible to subjective evaluations. Further, even in respect of such a process of gathering factual information, the Court reserves the right to second-guess the outcomes of national assessment.36

3.3 The process of evaluating national laws

Akin to the evaluation of questions of fact, the appraisal of domestic law is in principle considered to fall outside the scope of the Court’s review. The consistent jurisprudence amply demonstrates that ‘it is in the first place for the national authorities, and in particular the courts of first instance and appeal, to construe and apply the domestic law’.37 This

31See, for instance, ECtHR, Klaas v. Germany (Appl. No. 15473/89), Judgment (Chamber), 22 September 1993, Series A, Vol. 269, para. 29.

32Compare this, however, with E. Voyiakis, ‘International Law and the Objectivity of Value’, Leiden Journal of International Law 22:1 (2009) 51–78 (hereinafter Voyiakis, ‘International Law’).

33Compare, for instance, ECtHR, Müller and Others v. Switzerland (Appl. No. 10737/84), Judgment (Chamber), 24 May 1988, Series A, Vol. 133; and ECtHR, Vereinigung Bildender Künstler v. Austria (Appl. No. 68354/01), Judgment (First Section), 25 January 2007, not reported.

34See, for instance, ECtHR, Pla and Puncernau v. Andorra (Appl. No. 69498/01), Judgment (Fourth Section), 13 July 2004, Reports 2004-VIII, para. 46 (holding that the Court’s review can intervene only when ‘the national courts’ assessment of the facts … were manifestly unreasonable or arbitrary or blatantly inconsistent with the fundamental principles of the Convention’).

35Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 937.

36See Spielmann, ‘Allowing the Right Margin’, at 8.

37See, inter alia, ECtHR, Winterwerp v. The Netherlands (Appl. No. 6301/73), Judgment (Chamber), 24 October 1979, Series A, Vol. 33, at 20, para. 46; ECtHR, Iglesias Gil and

process necessitates the evaluation of national policy choices in relation to socio-economic issues under article 1 of the First Protocol.38 The second phase can be integrated into the first process of evaluating empirical data. As such, this phase is also amenable to a deferential approach. The Strasbourg Court’s intervention tends to be confined to cases where national assessment is regarded as ‘manifestly unreasonable or arbitrary’,39 or ‘manifestly without reasonable foundation’.40

3.4 The process of evaluating the human rights norms in the ECHR

This phase essentially concerns the interpretation of the terms of ECHR rights and the determination of their meaning and scope. Human rights law, while providing ‘deontological constraints’ and pulling judicial decisions in the direction of optimising rights, does not prescribe their content and ambit exhaustively.41 Indeed, despite inexorable increase in normative instruments and monitoring mechanisms of international human rights law both at universal and regional levels, it remains the case that one of the most conspicuous weaknesses of the current human rights system is the ‘lack of a thick normative content’, that is, the question of indeterminacy of human rights concepts.42 Hence, there remains ineluctably a measure of interpretive latitudes for determining their scope and meaning, and for reconciling conflicting liberties in case of clashes between them. In the ECHR context, where the normative ambit and meaning of a human rights norm is indefinite, the Court is receptive to the deferential policy, on the ground that national authorities

AUI v. Spain (Appl. No. 56673/00), Judgment (Fourth Section), 29 April 2003, Reports 2003-V, para. 61; ECtHR, Slivenko v. Latvia (Appl. No. 48321/99), Judgment (Grand Chamber), 9 October 2003, Reports 2003-X, para. 105; and Pla and Puncernau v. Andorra, para. 46.

41G. Pavlakos, ‘Constitutional Rights, Balancing and the Structure of Autonomy’, Canadian Journal of Law and Jurisprudence 24:1 (2011) 129–54 (hereinafter Pavlakos, ‘Constitutional Rights’), at 132.

42Carozza, ‘Subsidiarity’, at 58–9, 62.

are better placed to ascertain concrete measures implementing the abstract Convention right in specific circumstances.43 The problem of ambiguity of some human rights norms remains unresolved, not least because of the absence of ‘common social or moral order’ in Europe that would serve as a metric for normative guidance.44

Human rights norms are often deliberately drafted in a general and ambiguous manner to accommodate multiple eventualities in the future.45 Such an open-ended norm encompasses: (i) an ill-defined or inherently ambiguous norm;46 and (ii) an intrinsically discretionconferring norm.47 Legal norms inherently entail what Waismann and Hart describe as an ‘open texture’.48 Hart explains that ‘[w]hichever

43 In the context of minority rights protection, see P. Keller, ‘Re-thinking Ethnic and Cultural Rights in Europe’, Oxford Journal of Legal Studies 18 (1998) 29–59, at 52–3.

44 S. Wheatley, ‘Minorities under the ECHR and the Construction of a “Democratic Society”’, Public Law (2007) 770–92 (hereinafter Wheatley, ‘Minorities’), at 789. The line of argument is redolent of the hermeneutic postulation that the pre-understanding of judges, which is shaped by ‘the shared topoi of an ethical tradition’ serves to forge ‘the flexible connections between norms and states of affairs’ on the basis of ‘received, and historically corroborated principles’: J. Habermas, Between Facts and Norms (Cambridge, MA: MIT Press, 1996) (hereinafter Habermas, Between Facts), at 200.

45Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 910. See ECtHR, Odièvre v. France (Appl. No. 42326/98), Judgment (Grand Chamber), 13 February 2003, Reports 2003-III, para. 40; ECtHR, Boso v. Italy (Appl. No. 50490/99), Decision (First Section), 5 September 2002, Reports 2002-VII; and ECtHR, Vo v. France (Appl. No. 53924/00), Judgment (Grand Chamber), 8 July 2004, Reports 2004-VIII, para. 82 (recognising that ‘the issue of when the right to life begins comes within the margin of appreciation which the Court generally considers that states should enjoy in this sphere, notwithstanding an evolutive interpretation of the Convention’).

46For instance, see the notion of ‘protection of … morals’ under art. 8(2) ECHR. For the discussions on the German public law doctrine on indefinite norms (unbestimmte Begriffe), see Arai-Takahashi, ‘Administrative Discretion in German Law’.

47Shany calls this a ‘result-oriented norm’: Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 917. When analysing the theory of the margin of appreciation in the general context of international law, Shany argues that special features of the resultoriented norms are that: (i) these norms are indifferent to the manner in which a desired legal end is attained, insofar as its attainment is guaranteed; (ii) state authorities are given discretion over choice of means and manner of implementing such norms; and (iii) the path to the desired social/public end is uncertain: ibid.

48H.L.A. Hart, The Concept of Law, 2nd edn (Oxford University Press, 1994) (hereinafter Hart, The Concept of Law), at 127–8. Brian Bix explains that the term ‘open texture’ derives from the idea of the same name proposed by Waismann, a colleague of Hart’s at Oxford: B. Bix, ‘Questions in Legal Interpretation’, in A. Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy (Oxford: Clarendon Press, 1995) 137–54, at 138. See also B. Bix, Law, Language, and Legal Determinacy (Oxford: Clarendon Press, 1993), at 7–17.

device … is chosen for the communication of standards of behaviour, these, however smoothly they work over the great mass of ordinary cases, will, at some point where their application is in question, prove indeterminate; they will have what has been termed an open texture’.49 In a different work, he refers to ‘problems of the penumbra’ or ‘a penumbra of uncertainty’ that surround all legal rules, which make it hard to assert that the application of legal rules to specific cases is merely a matter of logical deduction or automation.50 Hart accepts that uncertainty and indeterminacy concerning the requirement of the law is inevitably susceptible to adjudicative discretion.51 In his view, if a legal norm lacks ‘objective’ content (namely, an objectively correct answer to what the norm requires), then judges are given a scope of discretion to determine the content of the norm on the basis of extralegal considerations, including moral and political values.52 Where moral norms lack ‘objective’

49Hart, The Concept of Law, at 127–8, emphasis in the original.

50H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71 (1957) 593–629 (hereinafter Hart, ‘Positivism’), at 607–8. In cases where legal disputes raise a question of law concerning a rule’s open texture, ‘uncertainties as to the form of behaviour required by them may break out in particular concrete cases’: Hart, The Concept of Law, at 126.

51Hart observes that ‘In every legal system a large and important field is left open for the exercise of discretion by courts and other officials in rendering initially vague standards determinate, in resolving the uncertainties of statutes, or in developing and qualifying rules only broadly communicated by authoritative precedents’: ibid., at 136.

In another work, he aptly observes that:

The point must be not merely that a judicial decision to be rational must be made in the light of some conception of what ought to be, but that the aims, the social policies and purposes to which judges should appeal if their decisions are to be rational, are themselves to be considered as part of the law in some suitably wide sense of ‘law’ which is held to be more illuminating than that used by the Utilitarians.

[…]

…instead of saying that the recurrence of penumbral questions shows us that legal rules are essentially incomplete, and that, when they fail to determine decisions, judges must legislate and so exercise a creative choice between alternatives, we shall say that the social policies which guide the judges’ choice are in a sense there for them to discover; the judges are only ‘drawing out’ of the rule what … is ‘latent’ within it.

Hart, ‘Positivism’, at 612. However, he is careful in stating that to describe such judicial role of ‘drawing out’ as judicial legislation ‘is to obscure some essential continuity between the clear cases of the rule’s application and the penumbral decisions’: ibid.

52 He argues that ‘if it is an open question whether moral principles and values have objective standing, it must also be an open question whether ‘soft positivist’ provisions

standing, as they often do, then the only way, according to Hart, to give effect to a legal norm entailing moral language, is to construe it as guiding judges to exercise their ‘law-making discretion’ in harmony with their ‘best understanding of morality’.53 In essence, receptiveness of such indefinite or discretion-giving norms to a margin of appreciation can be explained by the difficulty in evaluating the moral, political and other value-laden considerations underlying such norms.

3.5 The process of balancing individual persons’ rights and public interest grounds

Arguably, the application of a margin of appreciation is most discernible and tenacious in this phase of balancing. The national authorities may be given latitudes of discretion in ascertaining the means (types, suitability, proportionality, etc.) to attain social objectives in a particular factual circumstance.54 This corresponds to the process of what Greer55 terms ‘structured balancing’ between a right and a public good, or of reconciling clashes between rights. Similarly, Letsas’ ‘substantive concept of the margin of appreciation’ doctrine is set in motion to rationalise the relationship between rights of individual persons and the collective interests.56 It ought to be noted that the term ‘margin of appreciation’ in this context might be redundant if the

purporting to include conformity with them among the tests for existing law can have that effect or instead, can only constitute directions to courts to make law in accordance with morality’: Hart, The Concept of Law, at 253–4. See also K.E. Himma, ‘Inclusive Legal Positivism’, in J. Coleman and S. Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford University Press, 2002) 125–65, at 145–6.

53Hart, The Concept of Law, at 253.

54Shany, ‘Toward a General Margin of Appreciation Doctrine’, at 917 and 935. In this phase, for instance, the proportionality of incriminating measure (penalty) may be assessed.

55S. Greer, ‘“Balancing” and the European Court of Human Rights: A Contribution to the Habermas-Alexy Debate’, Cambridge Law Journal 63 (2004) 412–34, at 434.

56Letsas, ‘Two Concepts of the Margin of Appreciation’, at 709. Letsas distinguishes between the ‘structural’ and ‘substantive’ concepts of the margin of appreciation. The structural concept refers to the limit of the review conducted by the Court and the scope of discretion given to the national authorities on the basis of the vertical relationship between the Court and the national authorities. On the other hand, Letsas contemplates that the ‘substantive concept of the margin of appreciation’ adverts to interpretive discretion in the area of substantive moral issues, such as the appropriate balance to be struck between an individual person’s right and the public interest as a whole: ibid., at 705–32; and Letsas, ‘A Theory of Interpretation’, at 80–1, 84–92.

notion of a ‘fair balance’ that the Court has frequently invoked were more systematic and coherent.57

When weighing the rights of individual persons against public goods essential to the Convention’s ‘constitutional’ order, the Court ought to provide a considered judgment based on substantive moral arguments.58 As noted by some commentators,59 the variable margin as a means to adjust the intensity of its review has much to do with the Court’s struggle to make a hard choice of political morality when it is grappling with a complex balance of values between community goals and individual persons’ rights.60 The propensity for a deferential approach is enhanced, where decisions entail complex policy or political issues that are closely bound up not merely with the demand of sovereignty, but with that of legitimacy of the national or local community.61 Alexy recognises that decision-makers enjoy ‘structural discretion’ when assessing competing interests that are crudely of equal weight and where a single answer is unlikely to be inferred from a balancing appraisal.62

57Compare A. Mowbray, ‘A Study of the Principle of Fair Balance in the Jurisprudence of the European Court of Human Rights’, Human Rights Law Review 10 (2010) 289–317 (hereinafter Mowbray, ‘A Study of the Principle of Fair Balance’), at 289 (describing this notion as a ‘principle’).

58Letsas, ‘Two Concepts of the Margin of Appreciation’, at 709. In the Refah partisi case, the Court affirmed that ‘[p]luralism and democracy are based on a compromise that requires various concessions by individuals or groups of individuals, who must sometimes agree to limit some of the freedoms they enjoy in order to guarantee greater stability of the country as a whole’: ECtHR, Refah partisi (The Welfare Party) and Others v. Turkey (Appl. Nos. 41340, 41342 and 41343/98), Judgment (Grand Chamber), 13 February 2003, Reports 2003-II, para. 99.

59Mowbray, ‘A Study of the Principle of Fair Balance’, at 316. See also Carozza, ‘Subsidiarity’, at 73.

60The restrained review standard has been discerned in cases regarding town planning, social and economic policy issues (including the transition from a community system to a free-market economy), the manner of taking cultural property into public ownership: Sporrong and Lönnroth v. Sweden (Appl. Nos. 7151 and 7152/75), Judgment (Plenary), 23 September 1982, Series A, Vol. 52; Broniowski v. Poland (Appl. No. 31443/96),

Judgment (Grand Chamber), 22 June 2004, Reports 2004-V. Compare these with Kozacıoğlu v. Turkey (Appl. No. 2334/03), Judgment (Grand Chamber), 19 February 2009, para. 53 (confirming the general principle that ‘Finding it natural that the margin of appreciation available to the legislature in implementing social and economic policies should be a wide one, the Court will respect the legislature’s judgment as to what is “in the public interest” unless that judgment is manifestly without reasonable foundation’; yet the Court finding a proportionate balance to be upset).

61Mowbray, ‘A Study of the Principle of Fair Balance’, at 316.

62R. Alexy, A Theory of Constitutional Rights (Oxford University Press, 2002) (hereinafter Alexy, A Theory of Constitutional Rights), at 414–25. See also M. Kumm, ‘Constitutional

With respect to non-derogable rights, there is no scope of balancing, with the width of a margin of appreciation shrinking to zero.63 Judge Spielmann of the ECtHR affirms that ‘the margin of appreciation is virtually inexistent when it comes to the non-derogable rights’ (right to life, prohibition of torture, prohibition of slavery and forced labour, prohibition of retroactive legislation, the ne bis in idem rule).64 What is more, deontological critics, including Ronald Dworkin, who proposes individual persons’ rights as ‘trumps’,65 are averse to the idea of balancing with respect to all human rights, be they non-derogable or not. These critics may consider that all human rights are unsusceptible of balancing.66 After all, the central tenet of Dworkin’s thesis is to place emphasis on the singular nature of human rights.67 Along this line, other

Rights as Principles: On the Structure and Domain of Constitutional Justice’ – A Review Essay on A Theory of Constitutional Rights’, International Journal of Constitutional Law

2:3 (2004) 574–96 (hereinafter Kumm, ‘Constitutional Rights as Principles’), at 581 and 588. Finnis argues that in a ‘hard case’, the requirements of moral soundness and fit in Ronald Dworkin’s theory of interpretation leave more than one answer that is morally and legally ‘not wrong’, allowing leeway of discretion to those that interpret laws: J. Finnis, ‘Natural Law: The Classical Tradition’, in Coleman and Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law, 1–60, at 36. According to Dworkin,

‘hard cases’ are discernible in instances where ‘reasonable lawyers’ disagree and ‘where no settled rule dictates a decision either way’: R. Dworkin, Taking Rights Seriously (London: Duckworth, 1977) (hereinafter Dworkin, Taking Rights Seriously), at xiv and 83.

63For instance, in cases involving anticipatory form of torture, the Court has consistently treated as irrelevant the conduct of applicants at issue, including the claim that they are allegedly posing a threat to national security: see ECtHR, Chahal v. UK (Appl. No. 22414/ 93), Judgment (Grand Chamber), 15 November 1996, Reports 1996-V, para. 80; and ECtHR, Saadi v. Italy (Appl. No. 37201/06), Judgment (Grand Chamber), 28 February 2008, Reports 2008, para. 138.

64Spielmann, ‘Allowing the Right Margin’, at 11.

65R. Dworkin, ‘Rights as Trumps’, in J. Waldron (ed.), Theories of Rights (Oxford University Press, 1984) 153–67. See also, M. Cohen-Eliya and I. Porat, ‘The Hidden Foreign Law Debate in Heller: The Proportionality Approach in American Constitutional Law’, San Diego Law Review 46:2 (2009) 367–413, at 395 (arguing that ‘American constitutional culture holds a more traditional view of rights as strong trumps or side constraints vis-à-vis government action’, and that this ‘is the result of the great suspicion with which both government and the judiciary are regarded’).

66See also Rawls’ theory based on ‘priority of the right over the good’: J. Rawls, Political Liberalism (New York: Columbia University Press, 1993), at 173; and Kumm, ‘Constitutional Rights as Principles’, at 590 (considering that this strand of thought can ultimately trace its origin to Immanuel Kant’s theory premised on the ideas of dignity and autonomy as opposed to the collective interference of ‘the good’).

67See, for instance, R. Dworkin, ‘Even Bigots and Holocaust Deniers Must Have Their Say’, The Guardian, 14 February 2006 (concerning the highly controversial Danish cartoons lampooning the Prophet Mohamed).