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Title: Is there a European law of human rights? : diversity in the interpretation and application of the ECHR by the European organs and the domestic courts of the member states
Author: Leonardi, Danilo A.
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 1994
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This study examines the relevance and consequences of the use of the comparative method as a tool of interpretation of the law of the European Convention on Human Rights and particularly, the capacity of the "transplants" of principles and legal thinking from one tradition to the other to enhance the protection of rights and freedoms. The metaphor of "transplants of laws" is proposed to depict more clearly the complexities of transfers and borrowings between various systems of protection. The work is guided by the question: "Is there a European law of human rights?" The affirmative answer is qualified by the existence of overlapping systems and remedies which affect ECHR construction. The comparative method is used, therefore, to bring to light the effect of these pressures in specific cases. The consequences of the dynamic interpretation, the doctrine of the margin of appreciation and the supranational judicial review of member states' actions are also addressed. There is a limited inquiry into the drafting of the ECHR and into the protection of human rights in the EU system from the point of view of the same comparative method. In addition, the effect of the ECHR in three countries (with civilian, common law and "mixed" legal systems) is studied. It is the conclusion of this work that the strain produced by a multiplicity of systems on interpretation is turned to positive use with the help of the comparative method and this, in turn, improves the protection of the individuals. Further reliance on the method can assist the European organs in the refinement of their interpretative tools. As a result, a more harmonised protection of human rights emerges which is easier to share by different legal systems, although without becoming one single system of protection.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available