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A Theory of Interpretation of the European Convention on Human Rights$
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George Letsas

Print publication date: 2007

Print ISBN-13: 9780199203437

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199203437.001.0001

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Intentionalism, Textualism, and Evolutive Interpretation

Intentionalism, Textualism, and Evolutive Interpretation

Chapter:
(p.58) 3 Intentionalism, Textualism, and Evolutive Interpretation
Source:
A Theory of Interpretation of the European Convention on Human Rights
Author(s):

George Letsas

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199203437.003.0004

This chapter looks at the role that drafters' intentions and the text should play in the interpretation of the ECHR. The European Court has been relatively consistent in rejecting intentionalism and textualism as interpretive methods, in favor of the so-called ‘evolutive’ or ‘living instrument’ approach. The chapter provides a philosophical defence of the Court's approach drawing on the relevant debates about the interpretation of the US Constitution. It is argued that neither the text, nor drafters' intentions, can alone justify why the ECHR grants a particular right or not. Certainty and publicity, two values often cited in support of intentionalism and textualism, have no application in the ECHR which is neither meant to guide individuals' conduct nor to protect States' expectations about what their ECHR obligations are. On the contrary, the ECHR aims to prohibit States from treating individuals in a certain way, however convenient or justified they may find it.

Keywords:   textualism, evolutive interpretation, certainty, drafters' intentions, intentionalism, publicity, expectations, living-instrument

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