Assessing the Impact of the ECHR on National Legal Systems

Abstract

This book tracks and evaluates the impact of the ECHR on eighteen national legal orders. As the reports demonstrate, national systems are increasingly porous to the influence of the ECHR and the case law of its Court. European States no longer embody insular, autonomous, self-defined legal systems, if ever they did. At the constitutional level, the systems of every country surveyed in this volume have experienced significant structural change. To take two dramatic examples, judges once prohibited from engaging in judicial review of statute now do so routinely, with reference to European rights; and the dualist features of many legal systems have given way to a sophisticated monism, when it comes to the Convention. Further, how the different branches of Government interact with one another has been changed, radically in some States, to the extent that the regime’s evolution has served to undermine traditional separation of powers dogmas. This volume also examines the impact of the Strasbourg Court’s jurisprudence on legislators, executives, and judges. Thousands of discreet legal and policy outcomes have been altered as a result of the influence of Convention rights. It is also clear that legal education and scholarship are also changing in ways that will help to consolidate the regime’s domestic presence and legitimacy. The impact of the ECHR is organized by a complex social process that we call reception. The reports identify a diverse range of mechanisms of reception: those stable procedures that national officials construct and use in order to adapt the national legal order to the ECHR, as it develops over time. The reports show that no State can fully insulate itself from the regime’s reach and influence. The best States can do is to build and maintain their own system of strong national rights protection, and to develop effective mechanisms of reception. The reports also show that the intensity of the influence of the jurisprudence of the Strasbourg Court on domestic systems varies widely across States; and the Court’s impact has increased over time, in some legal domains more than others, within each State. Although we will venture a number of general propositions about reception processes in this chapter, such statements should be carefully considered in light of the cross-national and temporal diversity documented and evaluated in the national reports.