The Scope and Balancing of Rights: Diagnostic or Constitutive?

George Letsas 

University College London - Faculty of Laws
October 29, 2013

Eva Brems & Janneke Gerards (eds), Shaping Rights: The Role of the European Court of Human Rights in Determining the Scope of Human Rights, Cambridge University Press, Forthcoming 
Abstract:      

The two-stage doctrinal test of scope and balancing that human rights courts use to determine whether there has been a human rights violation is diagnostic. It does not tell us what a right consists in. Rather, it is a mechanism for helping courts to explore constitutive questions about what a right consists in and whether it was justifiably infringed. Like any diagnostic test, the test has weaknesses and limitations. It can produce false negatives and false positives. The paper highlights the importance of the distinction between diagnostic and constitutive questions about rights and explores the shortcomings of the test that European courts use in adjudicating fundamental rights.

Number of Pages in PDF File: 30

Keywords: human rights, fundamental rights, scope of rights, balancing, proportionality, European Convention on Human Rights, judicial review

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2346835