New Research Project

Natural Law and the European Convention on Human Rights

I am happy to share the news that my colleague Professor Veronica Rodriguez-Blanco and I have secured funding to establish a Classical Legal Theory hub at the University of Surrey School of Law. The hub will promote learning and scholarship about the classical natural law tradition and its rich relationship to legal theory and practice.

The inaugural project of the Hub will be to critically assess the European Convention on Human Rights and European Court of Human Rights from a classical natural law framework. We will bring together leading scholars for a series of symposia and workshops on this topic, with a view to publishing the proceedings in a book for public dissemination so that they might inform ongoing debates about the Convention and role of the Court.

Overview of Project

In the last fifty years, judgments of the European Court of Human Rights have consistently overlooked the historical and conceptual roots of the Convention whilst offering interpretations that distorts its roots and intelligibility. The foundations of the Court’s current methodological approach to interpreting the Convention were firmly laid in the late 1970’s. With its decision in Tyrer v United Kingdom (25 April 1978, § 31, Series A no. 36) and its adoption of the living instrument doctrine, the Court made a momentous decision about its future direction and how it regarded its role within the Council of Europe.

The Court’s choice of methods set its face against another conception of its role; namely, one where it had the important but limited role of guarding the bargain struck by the signatory states in the terms of the European Convention, one intended to set a basic but very firm baseline of the kind of fundamental rights and liberties that political authorities owe to their citizens in any basically just society. Many of those pushing for the creation of the Convention, and who were involved in its drafting, understood it to be an affirmation of what treatment is owed to the human person by reason of the natural law. These would be understood, broadly speaking, as the same kind of rights and liberties that the Nazi and Communist totalitarian movements of the early to mid-European twentieth century worked hard to crush and degrade, a dark period which motivated the creation of the Council of Europe and its institutions in the first place.

From the 1970’s onward, the Court instead embraced a more wide-ranging conception of its role, one which encompassed keeping the legal content and scope of the text of the Convention in line, or evolving with the changing moral, cultural, and legal practices of the member states and shifting moral consensus of the peoples of Europe concerning different policy issues. The Court’s choice of methodological approach has had significant consequences for law and policymaking within the Council of Europe’s member states, and helped to generate very extensive and elaborate bodies of law touching on every conceivable area of socio-economic policy, a great deal of whose content would have been entirely surprising to the signatories of the Treaty.

The historian A.W.B Simpson wrote that the:

“sheer scale of the activities of the convention’s institutions, and their intrusiveness into what were once viewed as purely domestic matters, was never dreamt back in 1950. Indeed, had the politicians then been able to foresee this intrusiveness then it is most improbable that the convention would ever had been ratified” (Human Rights and the End of Empire (OUP, 2001) p.4)

The Court’s approach is in tension with some core principles of the classical natural law tradition. The classical tradition commits judges to discerning the choices and intent of the lawmaker, and to impartially apply the pre-existing law to resolve disputes. This is in deep conflict with the Court’s current approach which empowers them to project their preferred meaning onto the text of the Convention – justified by appealing to a shifting moral consensus. The Court’s current approach gives only weak attention to the text and underlying intent of the Convention, and imposes legal obligations on member states they never intended to assume.

The Court’s current methods are also in tension with the classical notion that human rights are all about what kind of treatment people are owed by political authorities based on fundamental truths about the dignity and moral equality of human persons. Rights are all about the kind of treatment that justice and the common good demands people are morally owed and not, say, what judges feel is required in order to respect individual autonomy or a changing moral consensus. These views are difficult to square with idea, embraced by the Court, that the substance of what rights are properly owed to persons shifts in response to changing moral views amongst different member states. To the extent the Court has a thick normative understanding of the purpose and point of rights, it is often linked to a contestable liberal account which promotes the primacy of individual autonomy and self-determination.

By reexamining the historical and conceptual foundations of the Convention, including the importance of natural law and Christian democratic thinking of many of those involved in its creation, we hope to provide a firm basis for critiquing the status quo of the Convention system and offering a different approach for the protection of rights. We hope to explore alternative ways of conceiving of the nature and point of rights than the Court’s dominant liberal autonomy-centric approach, and of the proper relationship between rights and the common good. This, in turn, will help exploration of how current judicial doctrine concerning the interpretation of the scope of rights, their permissible regulation, and the balance of authority between the national and supranational can be recrafted in a manner more consistent with the natural law tradition. Finally, we want to explore how the practicability and feasibility of how the alternative approaches to the Convention might be implemented in practice, through policy measures aimed at reform.