A dialogical model of human rights adjudication

Abstract

Abstract This article presents the contours of a “dialogical model” of adjudication arising from the practice of the European Court of Human Rights that is profoundly transforming inherited notions of rights, legal reasoning, legal authority, and the rule of law more generally. The dialogical model is characterized by a form of reasoning that is not self-reliant or autonomous, but internally constituted by the interaction of multiple voices, normative perspectives, and institutional standpoints. What is defined as dialogical, however, is not the inclusion of this or that discrete voice, but the entire process of adjudication, including: how issues are framed; the need to consider cases as a whole; their embeddedness in large swathes of normative magma; the self-reflexive assessment of the Court’s position and trajectory; the relational understanding of the Court’s authority; and the fact that each and every decision constitutes a notion of democracy that is plural, many-voiced, and inherently in tension. Beyond a mere polyphony of voices, therefore, this is an entirely new paradigm to conceive the Court’s task, which differs markedly from the two main paradigms of understanding human rights adjudication, namely the rights-based model and proportionality analysis. After describing the shortcomings of the latter two paradigms fully to account for the Court’s practice, the article presents the features of the dialogical model. Ultimately, this is a judgment about the collective self-definition of democratic societies, which necessitates a reassessment of the countermajoritarian difficulty to account for the democracy-constituting role of the Court.