4 - The Method of Adjudication

Summary

INTRODUCTION

Harmsen claims the Court has tended to adopt an ‘excessively conservative’ and casuistic method lacking principled coherence, and President Wildhaber argues that ways need to be found for it ‘to concentrate its efforts on decisions of “principle”, decisions which create jurisprudence’. However, the building blocks of a more coherent approach are already available, already partly employed, and merely need to be applied with greater consistency in order effectively to address core constitutional problems in the Convention which are also familiar in some form in all contemporary democratic constitutional systems – the division of responsibility between judicial and non-judicial bodies, how ‘activist’, ‘restrained’, or ‘deferential’ courts should be in scrutinizing the exercise of non-judicial public power, and the relative responsibilities of institutions at different levels of a constitutional system, in this case national and pan-European ones. The core thesis of this chapter is that the key to the more effective delivery of constitutional justice lies in the Court being more formally committed to the distinction between primary and secondary constitutional principles already inherent in the Convention.

Since the Convention's provisions are abstract and sparse, the key to resolving individual complaints ultimately lies in how the text is interpreted. In addition to the guidance provided by the precise terms of particular provisions, which often specify limits to rights, the process of interpretation is said to be governed by the application of a dozen or so ‘interpretive principles’.