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European Consensus between Strategy and Principle / Chapter 9: The Strategic Approach: Consensus as Legitimacy-Enhancement
European Consensus between Strategy and Principle / Chapter 9: The Strategic Approach: Consensus as Legitimacy-Enhancement
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Chapter
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1–14
Titelei/Inhaltsverzeichnis
1–14
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15–59
Chapter 1: Justifying Concrete Norms in Regional Human Rights Law: The Uses of European Consensus in the Court’s Processes of Justification
15–59
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I. Human Rights Adjudication: High Stakes and Little Guidance
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II. Introducing European Consensus
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III. Key Characteristics of European Consensus
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IV. European Consensus and Critical International Legal Theory
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1. Different Perspectives on Consensus: Structuralist Methodology
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2. Human Rights between Apology and Utopia
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3. Morality-focussed and Ethos-focussed Perspectives
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4. Strategic Considerations and Consensus as Legitimacy-Enhancement
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5. The Indeterminacy of Processes of Justification
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V. Outline of the Following Chapters
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60–93
Chapter 2: Morality-focussed Perspectives: European Consensus as an Infringement on Prepolitical Rights
60–93
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I. Introduction
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II. Morality-focussed Criticism of European Consensus
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1. Minority Rights and the Tyranny of the Majority
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2. Regional Human Rights Law and Distrust of States
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3. The Is-Ought Distinction and Strict Normativity
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III. Ambivalent Morality-focussed Perspectives on the Spur Effect
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IV. Interim Reflections: Tackling Prejudice
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94–136
Chapter 3: Ethos-focussed Perspectives: From National Ethe to a Pan-European Ethos
94–136
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I. Introduction
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II. Against the Morality-focussed Perspective: Differing Epistemologies
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III. National Ethe: From Traditions to Democratic Procedures
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IV. Ethos-focussed Perspectives at the Transnational Level
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1. Lack of Regional Democracy and Human Rights as a Cooperative Venture
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2. The Democratic Credentials of European Consensus
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3. From National Ethe to a Pan-European Ethos
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4. Implications of Harmonisation: Human Rights and European Integration
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V. Interim Reflections: Vestiges of Homogeneity
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137–175
Chapter 4: Interaction between Morality-focussed and Ethos-focussed Perspectives: Triangular Tensions and Instrumental Allegiances
137–175
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I. Introduction
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II. An Attempt at Reconciliation: The Condorcet Jury Theorem
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1. European Consensus as Collective Wisdom
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2. The Spur Effect and the Similarity Condition
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3. The Rein Effect and Bias Across States
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III. Triangular Tensions and Instrumental Allegiances
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1. Persistent Tensions Due to Differing Epistemologies and Idealisations
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2. From Tensions to Oscillation: The Example of Core Rights
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3. Instrumental Allegiances
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IV. Interim Reflections: Against Naturalisation
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176–209
Chapter 5: Establishing Consensus (I): Numerical Issues
176–209
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I. Introduction
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II. Consensus as Reasonable Agreement: But What Is Reasonable?
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III. Factually Oriented Approaches to European Consensus
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1. The Conventional Account: Asymmetry in Favour of the Rein Effect
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2. The Ethos-focussed Perspective versus Consensus-Agnostic Middle Ground
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3. The Ethos-focussed Perspective versus the Epistemic Approach
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IV. Morality-focussed Elements: Trends and Directionality
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V. Interim Reflections: Statistical and Ideal Majorities
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210–251
Chapter 6: Establishing Consensus (II): International Law as European Consensus
210–251
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I. Introduction
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II. European Consensus and Systemic Integration
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III. Ethos-focussed and Morality-focussed Perspectives on International Law
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IV. Different Kinds of Regional and International Law
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1. Taxonomies of International Law References
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2. Law of the European Union
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3. Council of Europe Materials
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4. Global International Law
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5. Soft Law
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6. Non-Representative Documents
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V. Consensus based on International Law versus Consensus based on Domestic Law
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VI. Interim Reflections: International Law as Grounded Yet Aspirational
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252–284
Chapter 7: Establishing Consensus (III): Different Levels of Generality
252–284
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I. Introduction
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II. Levels of Generality in the Court’s Use of European Consensus
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III. The Implications of Shifting Levels of Generality
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1. Different Constellations within Triangular Tensions
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2. Shifting Levels of Generality as a Search for Reflective Equilibrium
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IV. Interim Reflections: Beyond the Goldilocks Level of Generality
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285–328
Chapter 8: Consensus in Context: Autonomous Concepts, the Margin of Appreciation, and Tensions within the Court’s Doctrines
285–328
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I. Introduction
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II. Autonomous Concepts
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III. The Margin of Appreciation and Convention Standards
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1. Two Concepts of the Margin of Appreciation – and of Consensus?
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2. Contextualising the Rein Effect
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3. Contextualising the Spur Effect
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IV. Interim Reflections: Instable Oscillations and Doctrinal Connotations
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329–366
Chapter 9: The Strategic Approach: Consensus as Legitimacy-Enhancement
329–366
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I. Introduction
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II. European Consensus as Legitimacy-Enhancement
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1. Investing Sociological Legitimacy with Normativity
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2. The Background Assumption: Overcoming a “Legitimacy Crisis”
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3. The States Parties as Agents of Legitimacy
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4. European Consensus as the Basis of Incremental Development
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5. The Court as the Object of Legitimacy: Strategic Implications
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III. The Practical Limitations of Consensus as Legitimacy-Enhancement
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IV. Interim Reflections: Abstract Strategizing
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367–401
Chapter 10: Of Conflation and Normalisation: European Consensus between Strategy and Principle
367–401
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I. Introduction
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II. Non-Ideal Theory: The Dilemma of Strategic Concessions
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III. European Consensus as a Conflation of Strategy and Principle
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1. Different Perspectives on Consensus within Non-Ideal Theory
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2. Consensus and an Impression of Objectivity
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3. The Normalisation of a Strategic Approach to Consensus
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IV. Interim Reflections: Rethinking the Role of the Court
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402–449
Chapter 11: Engaging with Indeterminacy: Imagining Different Uses for Vertically Comparative Legal Reasoning
402–449
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I. Pulling Together the Threads: Beyond Consensus as Compromise
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II. Indeterminacy and the Motivation for Critique
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III. The Role of Human Rights Courts
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IV. Justifying Concrete Norms in Regional Human Rights Law, Revisited
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1. The Indeterminacy Thesis in the Judicial Context
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2. European Consensus and the Perpetuation of Current Power Structures
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3. A More Openly Political Court?
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4. Vertically Comparative Law as a Reflective Disruption of Equilibrium
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V. Outlook: Future Articulations of Human Rights
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450–460
Table of Cases
450–460
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461–497
Bibliography
461–497
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European Consensus between Strategy and Principle , page 329 - 366
Chapter 9: The Strategic Approach: Consensus as Legitimacy-Enhancement
Autoren
Jens T. Theilen
DOI
doi.org/10.5771/9783748925095-329
ISBN print: 978-3-8487-8091-4
ISBN online: 978-3-7489-2509-5
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