The consensus case law of the European Court of Human Rights in light of the Court’s legitimacy over time: A corpus-linguistic perspective

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In this chapter, I investigate the consensus case law of the European Court of Human Rights from a corpus-linguistic perspective. Reference to consensus is applied by the Court when it is in need of interpreting the European Convention on Human Rights dynamically in light of the present-day conditions in the Member States. The Court has used various different phrases over time to denote the concept of consensus (e.g. consensus, trend, common ground common denominator, a uniform or common approach, a common standard). In legal research, it is maintained that the variations in terminology do not affect the legal meaning of the concept, and especially, that consensus and trend are synonymous. Based on an empirical corpus-based study of Grand Chamber judgments, I show that the practical meaning of the terms is not identical. Consensus and trend are not used interchangeably by the Court, and the use of consensus increases more over time than trend. In a sociolegal perspective, the results reflect the legitimacy crisis that the Court is experiencing in the present time. It is under attack from national governments that have taken over the role of lawmaking that should rightly be the task of national parliaments. This has caused the Court to show “self-restraint” by preferring a consensual rather than an evolutive interpretation of the Convention.
Original languageEnglish
Title of host publicationLaw, Language and the Courtroom : Legal Linguistics and the Discourse of Judges
EditorsStanislaw Gozdz Roszkowski, Gianluca Pontrandolfo
Publication date2021
ISBN (Electronic)9781003153771
Publication statusPublished - 2021

ID: 275342617