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European Court of Human Rights and the Quality of Legislation: Shifting to a Substantial Concept of 'Law'?

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Abstract:

The evolution of the case law before the European Court of Human Rights has been affirming a fully substantial concept of what 'law' is, abandoning any reference to the rank of the provision in the hierarchy of the norms and any concern about its parliamentary origin or its judge-made nature. This progressive shift of paradigm is particularly relevant for the countries of continental Europe, which are traditionally based upon civil law and reservation to parliamentary legislation. Its effects are already evident in the jurisprudence of the supreme courts and seem to be able to condition the evolution of the legal drafting of parliamentary acts, in order to comply with the requirements of precision, clarity, accessibility and foreseeability, as set by the Court of Strasbourg.

Keywords: CASE LAW AS SOURCES OF LAW; COMMON LAW; CONCEPT OF 'LAW'; ECTHR; LEGISLATION; PRINCIPLE OF LEGALITY; QUALITY OF LEGISLATION; RULE OF LAW; SUPRANATIONAL RIGHTS ADJUDICATION

Document Type: Research Article

DOI: http://dx.doi.org/10.5235/175214612803596668

Publication date: October 1, 2012

More about this publication?
  • Legisprudence aims at contributing to the improvement of legislation by studying the processes of legislation from the perspective of legal theory. The content of the journal covers legislation in a broad sense. This comprises legislation in both the formal and the material sense (from national and European parliaments, regulation, international law), and alternatives to legislation (covenants, sunset legislation, etc.). It also takes in regulation (pseudo-legislation, codes of behaviour and deontological codes, etc.). The journal is theoretical and reflective. Contributions to the journal make use of an interdisciplinary method in legal theory. Comparative and system transcending approaches are encouraged. Sociological, historical, or economic studies are taken into account to the extent that they are relevant from the perspective of interdisciplinary legal theory. Dogmatic descriptions of positive law are not taken into consideration.
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