The margin of Appreciation in ECHR case-law as a boundary line to legal transplants

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Abstract

This study investigates the influence of the European Human Rights Court onState 'margin of appreciation' on the diffusion of accepted or rejected cultural and political choices through the jurisprudence of the case-law.The margin of appreciation is aninterpretative argument, a criterion, a parameter, which allows the Court to preserve rather than censure national State policies and choices on difficult issues which, involving moral and ethical questions, and which do not receive common answers in the ,European legal systems. The work considers some decisions of the Court on abortion, ovum donation, pre-implant embryo analysis and artificial procreation techniques, to find out if, in such subjects, which are all strongly connected to ethical, moral and social values, the case law of the Court is diachronically coherent in its variousdecisions or if there are considerable and relevant incoherences and interpretative mismatches among them.In this latter hypothesis, the explanation for these contradictions lies in the different use of the margin of appreciation argument and in the single rules and models being scrutinized by the Court. An examination of these suggests that sometimes the ECHR intends to preserve a certain national model through the margin of appreciation and at other times prefers to substitute it with another one, using different arguments, such as the general consensus of contracting States. Indeed, it seems that in the decision-making process the Court's approach is firstly, to consider the choice of the model, and ;particularly that of the rule or the value that has to be promoted or discouraged among the contracting States and secondly, the choice of the hermeneutic argument, that can be adopted in order to achieve this goal, according to an anti-formalist hermeneutic approach. The consequential outcomes can be very different, depending on which argument is adopted and they are deeply investigated in the essay.
Lingua originaleEnglish
Titolo della pubblicazione ospiteThe diffusion of law: The Movement of Laws and Norms Around the World
Pagine125-146
Numero di pagine22
Stato di pubblicazionePublished - 2015

All Science Journal Classification (ASJC) codes

  • Social Sciences(all)

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