The open architecture of European human rights law

The evolution of the European human rights regime is often described in constitutionalist terms: as the move towards an integrated order with the European Convention of Human Rights as its “constitutional instrument” at the top. In this article, I seek to show that this description is misguided and that the regime is better regarded as pluralist – as characterised by a heterarchical relationship between its constituent parts that is ultimately defined politically and not legally. The emergence and workings of this pluralist order are traced through the interaction of the European Court of Human Rights with domestic courts in Spain, France, the European Union and the United Kingdom. All these cases not only show conflicts over questions of ultimate supremacy but also significant convergence and harmony in day-to-day practice. I begin to identify factors that have led to this convergence and conclude that central characteristics of pluralism – incrementalism and the openness of ultimate authority – seem to have contributed to the generally smooth evolution of the European human rights regime in a significant way. This finding suggests a broader appeal of pluralist models as alternatives to constitutionalism in the construction of postnational authority and law

Introduction

Item does not contain fulltextThis book concerns the role played by international and domestic courts of general jurisdiction in implementing and developing international human rights law. For the purposes of this volume, such “courts of general jurisdiction” differ from “human rights courts” proper in that they have not been established to deal specifically and exclusively with human rights. As such, courts of general jurisdiction also encompass regional (economic) integration courts and all other courts with jurisdiction over non-human rights matters

Cohabitation’s boundaries and the confines of tradition

International audienceIn contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amended the boundaries of marriage and fundamental legal categories. A conservative approach to marriage and cohabitation has failed to conserve marriage. We identify a gap, not between law and social life but between law and its prevailing justification, that cohabitants are free to choose to marry or to conclude contracts. Legislative and judicial developments show that this justification fails to persuade. Finally, we read France and Quebec’s approach to cohabitation as symptomatic of an impoverished misreading of the civil law tradition