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Law Review: The Role of Precedent at the European Court of Human Rights

By Alliance Alert

Yonatan Lupu and Erik Voeten, The Role of Precedent at the European Court of Human Rights: A Network Analysis of Case Citations (February 8, 2010). Available at SSRN: http://ssrn.com/abstract=1549947 "While political scientists have become increasingly interested in the output of international courts, they have paid little attention to the manner by which these courts justify their decisions and develop legal norms. We address these issues through a network analysis of European Court of Human Rights (ECtHR) citations. We argue that, like domestic review courts, the ECtHR uses its legal justifications at least in part to convince 'lower' (domestic) courts of the legitimacy of its judgments. Several empirical observations are consistent with this view. First, country-specific factors do not determine the case-law on which the Court relies. Instead, it cites precedent based on the legal issues in the case. Second, the Court is more careful to embed judgments in its existing case law with respect to the more politically sensitive decisions. Third, the court embeds its judgments in case-law more when the respondent government is from a common law legal system where the courts traditionally rely more on similar justifications. In all, we conclude that the ECtHR by and large uses case law to justify its decisions in a way that is similar to domestic review courts. Finally, we highlight the utility of applying network analysis to further study the development of international legal norms."

Full post as published by Constitutionally Correct on February 10, 2010 (boomark / email).