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Non-arbitrariness, rule of law and the ‘margin of appreciation’: Comments on Andreas Follesdal

Published online by Cambridge University Press:  15 April 2021

GIANLUIGI PALOMBELLA Open the ORCID record for GIANLUIGI PALOMBELLA [Opens in a new window]
GIANLUIGI PALOMBELLA*
Affiliation:
Sant’Anna School of Advanced Studies, Institute of Law Politics and Development, Pisa
*
Email: [email protected]
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Abstract

Can citizens’ interest in non-domination be satisfied by the principle of legality and the guarantee of non-arbitrariness? This comment argues that the rule of law requires an internal organization of law that entails an additional positive law, through conventions, common law, judicial precedents or constitutions, which the sovereign cannot legally override. In the supranational context, the rule of law requires an equilibrium of consideration and respect between different legalities by avoiding a legal monopoly of a supreme authority and fostering the interaction among orders based on content-dependent reasons. The same applies to the relations between the ECtHR and member states. The margin of appreciation, taken as a reminder of the complexities of international institutional relationships, embodies a non-domination caveat to consider (the reasons from) the ‘normativities’ of different orders. Nonetheless, as an argumentative tool of the Court, it allows for an often-disputed discretion. Accordingly, better refined guidelines and justifications are required.

Keywords

arbitrarinessEuropean Court of Human RightsAndreas Follesdalmargin of appreciationnon-dominationrule of law
Type
Special Issue: Judicial Authority, Legitimacy and the (International) Rule of Law
Information
Global Constitutionalism , Volume 10 , Issue 1 , March 2021 , pp. 139 - 150
Copyright
© The Author(s), 2021. Published by Cambridge University Press.

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References

1 Follesdal, ‘International Human Rights Courts and the (International) Rule of Law: Part of the Solution, Part of the Problem, or Both?’ (in this issue).

2 Ibid; Krygier, M, ‘The Rule of Law: Legality, Teleology, Sociology’ in Palombella, G and Walker, N (eds), Re-locating the Rule of Law (Hart, Oxford, 2009) 45Google Scholar, 47ff.

3 See Pettit, P, Republicanism: A Theory of Freedom and Government (Clarendon Press, Oxford, 1997) 55Google Scholar; see also Pettit, P, ‘Law and Liberty’ in Besson, S and Marti, JL (eds), Legal Republicanism (Oxford University Press, Oxford, 2009) 39–60.Google Scholar

4 Follesdal (in this issue).

5 Weber, M, Economy and Society , Vol 2 (eds Roth, G and Wittich, C, University of California Press, Berkeley, CA, 1978) 82, 86.Google Scholar

6 Raz, J, ‘The Rule of Law and Its Virtue’ in id, The Authority of Law (Clarendon Press, Oxford, 1979) 227Google Scholar; see also J Waldron, ‘The Rule of Law and the Role of Courts’ (in this issue); BZ Tamanaha, ‘Always Imperfectly Achieved Rule of Law: Comments on Jeremy Waldron’ (in this issue).

7 Palombella, G, ‘The Rule of Law as an Institutional Ideal’ in Morlino, L and Palombella, G (eds), Rule of Law and Democracy: Internal and External Issues (Brill, Leiden, 2010) 3–37.Google Scholar

8 Ibid.

9 Tierney, B, ‘Bracton on Government’ (1963) 38(2) Speculum 295.CrossRefGoogle Scholar

10 Far from instantiating the English rule of law ideal, the law was, for example, under the monopoly of one single supreme source (legislator) at the time of the continental European rule of law state (Etat de droit, stato di diritto, and equivalents), before it changed into the post-World War II constitutional orders.

11 Goodhart, AL, ‘The Rule of Law and Absolute Sovereignty’ (1958) 106 University of Pennsylvania Law Review 943, 947.Google Scholar See also J Rawls, A Theory of Justice (Harvard University Press, Cambridge, MA, 1971) 234.

12 Pettit (n 3) also writes at 55: ‘When we say that an act of interference is perpetrated on an arbitrary basis … we imply that it is chosen or rejected without reference to the interests, or the opinions, of those affected.’

13 See Pettit (n 3); Palombella (n 7) 24–26.

14 Of course, even these legal structures can be overridden by the political sovereign, but this would be an illegal act and fall outside the rule of law.

15 MacCormick, N, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford University Press, Oxford, 2005)CrossRefGoogle Scholar tackles the issue of certainty about legal outcomes in dispute-situations and its relation to the rule of law; see also K Traisbach, ‘Judicial Authority, Legitimacy and the (International) Rule of Law as Essentially Contested and Interpretive Concepts: Introduction to the Special Issue’ (in this issue).

16 More at length in Palombella, G, ‘The Cognitive Attitude: About a Structural Character in Law Interpretation’ (1999) 85 Archiv für Rechts- und Sozialphilosophie 151.Google Scholar

17 See, for example, the special issue ‘Coup d’état in the Courtroom’ (2007) 8 German Law Journal 915: A Stone Sweet, ‘The Juridical Coup d’état and the Problem of Authority’ 915; N Walker, ‘Juridical Transformation as Process: A Comment of Stone Sweet’ 929; W Sadurski, ‘Juridical Coups d’état – All Over the Place: Comment on “The Juridical Coup d’état and the Problem of Authority” by Alec Stone Sweet’ 935; G Palombella, ‘Constitutional Transformations vs. “Juridical” Coups d’état: A Comment on Stone Sweet’ 941; A Stone Sweet, ‘Response to Gianluigi Palombella, Wojciech Sadurski, and Neil Walker’ 947.

18 Article 1: At the end of the preamble to the Convention, a new recital shall be added, which shall read as follows: ‘Affirming that the High Contracting Parties, in accordance with the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined in this Convention and the Protocols thereto, and that in doing so they enjoy a margin of appreciation, subject to the supervisory jurisdiction of the European Court of Human Rights established by this Convention.’

19 H de Bracton, De legibus et consuetudinibus Angliae, available at <https://archive.org/stream/bractondelegibu02histgoog#%20page/n39/mode/2up>, famously distinguished between jurisdictio and gubernaculum. For the rule of law in medieval times, see for example, GL Haskins, ‘Executive Justice and the Rule of Law: Some Reflections on Thirteenth-Century England’ (1955) 30 Speculum 529.

20 Palombella, G, ‘The Rule of Law at Home and Abroad’ (2016) 8 The Hague Journal on the Rule of Law 1.CrossRefGoogle Scholar

21 This is all the more important if one looks at the infinite variety of regulatory international regimes, including the UN Security Council and its Sanction Committee.

22 For a critical assessment of the idea of judicial dialogue, see K Traisbach, ‘A Transnational Judicial Public Sphere as an Idea and Ideology: Critical Reflections on Judicial Dialogue and its Legitimizing Potential’ (in this issue); F Kratochwil, ‘Law as an Argumentative Practice: On the Pitfalls of Confirmatory Research, False Necessities, and (Kantian) Stupidity – Comments on Knut Traisbach’ (in this issue).

23 For example Yuval Shany writes that ‘it is the combination of discretion on the part of national authorities and non-intrusive review by international courts which may produce the right mix between deference and supervision, in the light of the comparable advantages of the two sets of actors’: see Y Shany, ‘Toward a General Margin of Appreciation Doctrine in International Law?’ (2005) 16 European Journal of International Law 907, 919.

24 Think of Hirst v the United Kingdom (No. 2), ECtHR App No. 74025/01, 6 October 2005 and the ample follow-up in the vexed question of prisoners’ right to vote. And also the crucifix in public schools: Lautsi v Italy, ECtHR App No 30814/06, 3 November 2009; and the reverse in Lautsi and Others v Italy, ECtHR App No 30814/06, 18 March 2011.

25 Itzcovich, G, ‘One, None and One Hundred Thousands Margins of Appreciations: The Lautsi Case’ (2013) 13 Human Rights Law Review 306CrossRefGoogle Scholar; Greer, S, The European Convention on Human Rights: Achievements, Problems and Prospects (Cambridge University Press, Cambridge, 2006)CrossRefGoogle Scholar.

26 On the constitutionalization of the ECtHR, see G Ulfstein, ‘Transnational Constitutional Aspects of the European Court of Human Rights’ (in this issue); W Sadurski, ‘Quasi-Constitutional Court of Human Rights for Europe? Comments on Geir Ulfstein’ (in this issue).

27 Fabbrini, F, ‘The Margin of Appreciation and the Principle of Subsidiarity: A Comparison’ (2015) iCourts Working Paper Series 1, 6.Google Scholar

28 For a stigmatization of the doctrine as a whole, see JA Brauch, ‘The Margin of Appreciation and the Jurisprudence of the European Court of Human Rights: Threat to the Rule of Law’ (2004) 11 Columbia Journal of European Law 113.

29 Plutarch, Life of Julius Caesar (trans. Bernadotte Perrin, Harvard University Press, Cambridge, MA, 1919) 463–67 (IX–X).