The Scope and Balancing of Rights: Diagnostic or Constitutive?

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

30 Pages Posted: 30 Oct 2013

See all articles by George Letsas

George Letsas

University College London - Faculty of Laws

Date Written: October 29, 2013

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.

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

Suggested Citation

Letsas, George, The Scope and Balancing of Rights: Diagnostic or Constitutive? (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 , Available at SSRN: https://ssrn.com/abstract=2346835

George Letsas (Contact Author)

University College London - Faculty of Laws ( email )

Bentham House
4-8 Endsleigh Gardens
London, WC1E OEG
United Kingdom

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