Private and Family Life versus Morals and Tradition in the Case Law of the ECtHR

Summary

INTRODUCTION

For approximately thirty years now, the European Court has constantly been reshaping the relations between individuals, the family and the State. On the one hand, the autonomous concepts of private life and family life have been given a totally unexpected width. On the other hand, the obligations imposed on States in this ever-enlarging field have also become heavier. Article 8 requires States not only to abstain from undue interferences, but also to protect individuals from each other and to adopt positive measures designed to ensure the effectiveness of rights.

However, the rights guaranteed by the Convention may suffer restrictions on different grounds. The second paragraph of Article 8 of the Convention foresees that States may limit individual rights in order to pursue different legitimate aims such as the security or the economic well-being of the country, the protection of the rights and freedoms of others or the protection of morals. The pattern of justifications imposed on States regarding actions and abstentions in the ambit of personal and family life is evolving: at first sight, one could think that morals and traditions are much less efficient today than they used to be in the early case law of the Court. If this would be consistent with the contemporary favour for ‘liberal pluralism’, recent decisions suggest that the Court is still ready to uphold national solutions inspired by ‘legal moralism’.

This contribution studies, firstly, how moral and traditional views seemed to have been progressively delegitimised as justifications for restrictions to personal autonomy and equality between people and family forms (section 2) and, secondly, how, for a couple of years, majoritarian conceptions of morality appear reinvested with considerable weight while traditional views on family relations are treated in a schizophrenic way by the European judges (section 3).

FROM A DELEGITIMISATION OF MORALS AND TRADITION AS JUSTIFICATIONS FOR RESTRICTIONS ON RIGHTS

The protection of morals has oft en been invoked by States trying to justify restrictions on individual freedom in sexuality-related matters (section 2.1). The protection of the traditional family has rather been advanced as an argument justifying the differentiated treatment of unconventional families and inequalities between men and women (section 2.2).