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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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Two Concepts of the Margin of Appreciation

Two Concepts of the Margin of Appreciation

(p.80) 4 Two Concepts of the Margin of Appreciation
A Theory of Interpretation of the European Convention on Human Rights

George Letsas

Oxford University Press

This chapter examines the European Court's doctrine of the ‘Margin of Appreciation’. It argues that there are two different ways in which the Court has used the doctrine. The first one, called substantive, figures in cases where the Court has to decide whether a particular interference with a Convention freedom is justified. In its decision, the Court often uses the label ‘margin of appreciation’ without drawing on a substantive theory of rights that can justify the conclusion reached. The second use, called structural, appears in cases where the Court refrains explicitly from employing a substantive test of human rights review on the basis that there is no consensus among Contracting States on the legal issue before it.

Keywords:   margin of appreciation, deference, European Court, substantive use, structural use

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