Does Consensus Matter?
The UK-based journal Public Law (July issue) has published an article by Kanstantsin Dzehtsiarou, UCD Ad Astra Scholar: “Does consensus matter? Legitimacy of European Consensus in the Case Law of the European Court of Human Rights.”
This paper examines application and typology of the European consensus argument. This argument is widely used in the most controversial cases the Court deals with. The recent A, B, and C v Ireland was no exception. The author argues that European consensus possesses legitimising potential; however, this potential can be fully unpacked only if the Court deploys it coherently and consistently. It is also argued that consensus is not a homogeneous concept and four types of consensus should be distinguished: consensus identified through comparative analysis of the contracting states' legislation, international consensus, internal consensus, and expert consensus. The article is partially based on the interviews with the judges of the Court and will contribute to ongoing academic debate on the role of European consensus in the reasoning of the European Court and, more generally, to the broader debate about legitimacy of the European Court.
Subscribers to Westlaw UK can read the article here.
