Using Comparative Reasoning in Human Rights Adjudication: The Court of Justice of the European Union and the European Court of Human Rights Compared

Christopher McCrudden 

Queen's University Belfast - School of Law; University of Michigan Law School
2013

Cambridge Yearbook of European Legal Studies, 2012-2013, Volume 15
U of Michigan Public Law Research Paper No. 449 
Abstract:      

This chapter examines the relationship between the methods that the European Court of Human Rights (ECtHR) and the Court of Justice of the European Union (CJEU) use to decide disputes that involve ‘human’ or ‘fundamental’ rights claims, and the substantive outcomes that result from the use of these particular methods. It has a limited aim: in attempting to understand the interrelationship between human rights methodology and human rights outcomes, it considers primarily the use of ‘comparative reasoning’ in ‘human’ and ‘fundamental’ rights claims by these courts. It is not primarily concerned with examining the extent to which the use of comparative reasoning is based on an appropriate methodology or whether there is a persuasive normative theory underpinning the use of comparative reasoning. The issues considered in this chapter do some of the groundwork, however, that is necessary in order to address these methodological and normative questions.

Number of Pages in PDF File: 36

Keywords: European Court of Human Rights, Court of Justice of the European Union, comparative law, human rights, citation of foreign judgments

Full text available at: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2589548