Hard cases, bad law : how philosophising could help the ECtHR to achieve completeness and coherence

Letwin, Jeremy (2022) Hard cases, bad law : how philosophising could help the ECtHR to achieve completeness and coherence. European Human Rights Law Review, 2022 (6). pp. 587-603. ISSN 1361-1526

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Abstract

In this article, I identify instances in which ECtHR judgments have not been sufficiently complete or coherent and explain why the Court would not have been able to achieve sufficient completeness or coherence merely by adopting a "purely pragmatic" solution. I go on to show that it is only by engaging with philosophical thinking about the Convention that the Court could have achieved sufficient completeness and coherence in these instances—and that, although there are valid objections to the ECtHR engaging in philosophical reasoning, the adoption by the Court of a "pluralistic approach" to philosophical reasoning would weaken the force of many of these objections. I conclude that there are sometimes sound reasons for the ECtHR to philosophise.