Why Justice Scalia Ought to Like the European Court of Human Rights, or at Least Not Detest It So Much

by Marko Milanovic

The use of comparative jurisprudence in constitutional jurisprudence remain a very controversial issue, and one which I don’t want to go into in detail at this particular time. There’s one thing, however, that strikes me as rather interesting. Namely, at practically all of his appearances at which he discusses the use of foreign law, Justice Scalia loves using the European Court of Human Rights as a sort of scarecrow, an example of what judges should not be doing in a democracy.

So, for instance, at the January 2005 debate between him and Justice Breyer at the American University, Justice Scalia had this to say when discussing Lawrence v. Texas:

In my dissent in Lawrence, which was the homosexual sodomy case, I observed that the court cited only European law; said: Why, every European country has said you cannot prohibit homosexual sodomy. Of course, they said it not by some democratic ballot but by decree of the European Court of Human Rights, who was, you know, using the same theory that we lawyers and judges and law students — we know what’s moral and what isn’t. It had not been done democratically. Nonetheless, it was true that throughout all of Europe, it was unlawful to prohibit homosexual sodomy. The [Supreme] court did not cite the rest of the world. It was easy to find out what the rest of the world thought about it. I cited in my dissent the rest of the world was equally divided.

Likewise, at the 2006 debate with ACLU president Nadine Strossen, Justice Scalia again referred to the judges of the European Court. He stated that the abolition of the death penalty in Europe

was imposed by the Court of Human Rights, which said you cannot have the death penalty. So it’s not as though all Europeans voted to abolish it. It was judicially imposed. That doesn’t impress me very much.

(see here, at 3:20)

Now, it is on one level perfectly understandable why Justice Scalia dislikes the European Court. The Strasbourg judges’ entire purposive, teleological interpretative approach is anathema to Justice Scalia’s variant of originalism. Likewise, for almost thirty years, ever since the 1978 Tyrer case, the European Court has consistently held that the European Convention is a living instrument which must be interpreted in the light of present day conditions (the same approach that Justice Scalia sincerely wished would die in the US context). Finally, the European Court’s use of contextual balancing and proportionality tests in almost every situation is also contrary to Justice Scalia’s rather more categorical jurisprudence.

These fundamental methodological differences aside, however, Justice Scalia would probably be surprised that the substantive results that he prefers in the US context are those already reached by the European Court. I say ‘would be surprised’ because, with all due respect, neither of the examples that Justice Scalia gives of the European Court’s supposed misconduct are entirely correct on the facts.

When it comes to the death penalty in Europe, it was simply not outlawed by judicial fiat. On the contrary, unlike the US Constitution, Article 2(1) of the European Convention expressly allows for the imposition of the death penalty. That is why European states have outlawed the death penalty in a democratic process, through their own domestic laws, and amended the European Convention through Protocols 6 and 13, abolishing the capital punishment in times of peace and in all circumstances, respectively.

When it comes to gay rights, Justice Scalia is correct in stating that the European Court disallowed the criminal prohibition of homosexual conduct in Europe, in cases such as Dudgeon v. UK, Norris v. Ireland and Modinos v. Cyprus. What he doesn’t realize is that the vast majority of European countries had decriminalized sodomy before the European Court did anything. In fact, the European Court merely asked a very small, reluctant minority of European states, among them Ireland, Northern Ireland within the UK, and Cyprus, to conform to what the majority was already doing. Indeed, this comparative inquiry by the European Court into the practices of other European states was only natural in the context of Article 8 of the ECHR, which prescribes that restrictions on the right to privacy must be ‘necessary in a democratic society.’ All the Court said to the three reluctant countries was: when all these other democratic societies in Europe can do without punishing homosexuality, why can’t you?

The US Supreme Court in Lawrence did much the same as it surveyed the practice of the federated American states (Lawrence at 13). Yet, I would imagine that Justice Scalia would certainly prefer the European Court’s 1981 Dudgeon decision to his colleagues’ pronouncements in Lawrence, who held that, even under rational basis review, the statute in question furthered no legitimate state interest which could justify its intrusion into the personal and private life of the individual (Lawrence at 18, O’Connor at 5)

This holding Justice Scalia positively railed against, as it in his view opened up to attack criminal laws against fornication, bigamy, adultery, adult incest, bestiality, and obscenity (Scalia at 14-15). Article 8(2) of the ECHR, on the other hand, explicitly treats the protection of morals as a legitimate aim for government regulation, as did the Court itself in Dudgeon – it just didn’t find that the restriction imposed, the criminalization of consensual homosexual conduct, truly was necessary to further this legitimate interest.

This brings us to the question of abortion, which was not mentioned by Justice Scalia, but which is central to American constitutional discourse. Even though most European countries have liberal abortion laws, the European Court never held that the right to privacy under the ECHR encompasses abortion on demand. On the other hand, the Court has also held in Vo v. France that, in the absence of any European consensus, the right to life under the ECHR doesn’t extend to the fetus. In other words, the European Court has left it up to individual states to regulate abortion as they see fit, within certain minimal parameters. Some states have very liberal abortion laws, while others, such as Ireland, Malta or Poland have very restrictive ones. This is, I gather, precisely the result that Justice Scalia would wish for in the US context.

I am not saying that the example of the European Court is to be emulated, though Justice Scalia should certainly try to find a different scarecrow. It is important to note, however, that criticism of others is meaningful only when it is informed by fact and by a decent understanding of what they are doing (this goes for Europeans as much as for Americans). It is also interesting how less than fully informed criticism can actually reflect one’s own preoccupations. Nobody in Europe thinks that they are ruled from Strasbourg by philosopher kings coming straight out of the pages of Plato, but that is how (especially conservative) American lawyers indeed perceive Europe. Justice Scalia’s statement that it was the European Court that abolished the death penalty seems only natural to American lawyers, when it is everything but – note that even Nadine Strossen herself did not find anything strange about it. This just confirms, I think, that even if one doesn’t use foreign law directly in constitutional adjudication, understanding foreign law can only enhance one’s understanding of one’s own legal system.

http://opiniojuris.org/2007/05/07/why-justice-scalia-ought-to-like-the-european-court-of-human-rights-or-at-least-not-detest-it-so-much/

9 Responses

  1. I suppose if you can accept this:


    In fact, the European Court merely asked a very small, reluctant minority of European states, among them Ireland, Northern Ireland within the UK, and Cyprus, to conform to what the majority was already doing.

    Then the court isn’t so detestable. But this is still dreaming up human rights beyond what the (majority of) signatories intended at the time the court was established. That’s exactly what Scalia finds objectionable.

    And this:


    All the Court said to the three reluctant countries was: when all these other democratic societies in Europe can do without punishing homosexuality, why can’t you?

    That’s what the SCOTUS did in Lawrence, “rational basis review” not withstanding. Scalia and those who think like him have no cause to accept this as good judging.

    I agree with your conclusion that knowing international law cannot hurt, and can help, in legal understanding. But the rest of the post seems like a facetious swipe against Justice Scalia: “see, the ECHR is actually not as bad as your liberal colleagues!” It seems like the ECHR is just as good a whipping boy as any, if one intends to whip activist judges.

  2. So here’s the comparativism.

    My favorite line: “These fundamental methodological differences aside”–You are right when you identify the differences as fundamental, which indeed makes them difficult to push aside (and from the previous posts I thought substantive results would not be enough to merit praise). Judges construing living instruments and engaging in contextual balancing and proportionality tests–each of these empowers judges as the sole keepers of The Enlightened Truth. The fact that activist Europeans may be more modest in their judgments than activist Americans may show they better grasp enlightened self-interest and politics, but what happens when the latest judicial/law school fad shifts to something J. Breyer, J. Scalia, nor you actually like?

    Instead, Justice Scalia might more appreciate Judge Zekia’s dissent in Dudgeon.

    But your candor throughout continues to be recognized and truly appreciated.

  3. Dear Mr. Milanovic,

    Being Dutch, a Brabant-expat to be precise, I very much appreciate your nuances to Scalia’s opinions on the ECHR.

    Indeed it would be plainly false to say that capital punishment was imposed in any way by the ECHR, The vast majority of European countries abolished it themselves long before WOII, mostly at the end of the 19th century.

    After WOII it was in most countries, even in euthanasia-loving Holland temporarily enforced, for the worst war criminals only, only to be re-abolished some years later. Belgium being the severest exception to this rule of thumb.

    In American public opinion, and apparenty also in the opinion of Justice Scalia, there is a persistent image of a unified Europe as ultra-liberal.

    To the vast majority of European citizens however, Europe is farther away than the US. There is no such thing as “a Europe”, it still is severely separated along nationalist and even regional lines with next to nothing in common.

    Your article contributes to a more nuanced view to this, for which I’m grateful.

  4. Jack,

    ‘Dreaming up new human rights’ is much too strong an expression for what various courts in the world using ‘living instrument’ approaches are doing. Judicial activism, on the other hand, is a completely useless, undefined, derogatory monicker, which adds absolutely nothing to the debate.

    The question is not whether the meaning of certain words changes or not. Nobody in Europe thinks it does. When it comes to decyphering the semantic meaning of a phrase it is only natural to look at how that phrase was used at the time when it was drafted. Therefore, when interpreting if a particular act constitutes cruel treatment under Article 3 ECHR or cruel and unusual punishment in the context of the Eigth Amendment, we use the same meaning of the word ‘cruel’ as those people who drafted the ECHR or the US Constitution, decades or centuries ago. So, when we say ‘cruel’ we mean something causing pain and suffering, we don’t mean something mildly unpleasant or uncomfortable.

    The issue is whether in assessing whether a particular act is cruel or not we must look only at what the drafters considered to be cruel, or what the regular people at the time of the drafting considered to be cruel. Or, may we also take a look at what people today consider to be cruel, not anything pedestrian like conducting polls or anything of that sort, but, for example, by surveying the laws that people in various communities within a country, or possibly outside it, have adopted.

    I really don’t think that a judge opting for the latter option is by definition stepping outside the boundaries of judicial propriety, or that this option is inherently contrary to how law in general is to be interpreted.

    This is certainly not the way law is interpreted in Europe, or enywhere else but by the originalist school of thought in the US. None of 46 judges of the European Court would resort solely to originalist interpretation, nor do any of the 46 European states want them to do so, nor does any political party in these states lead such a crusade against judicial activism (though, of course, there are many judicial decisions which are controversial).

  5. Diplomatic Gunboat, the European Court is by no manner of means ‘the sole keeper[] of the Enlightened Truth’, nor does it claim to be anything like that. Rather, as Marko Milanovic’s post shows, the Court’s assessment of ‘present day conditions’, relevant to the interpretation of the Convention as a ‘living instrument’, is based not on the perceptions of the judges, or even of the majority of Europeans, but on the state of legislation and practice in the member States. In applying the ‘living instrument’ approach, the Court will therefore follow rather than lead.

    Also, let us not forget that there are limits to the interpretative powers of the Court. It should be remembered, in this respect, that the rule of contemporary interpretation expressed in the phrase of the ‘living instrument’ is a consequence of the purposive construction of an instrument designed to remain relevant for a long time, without the need for amendments (see Weems v. US 217 US 348, 373, and also Edwards v. Attorney-General for Canada [1930] AC 124, 136; Brown v. Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 703. Even the most purposive construction must remain within the bounds of interpretation, and not cross the line into legislation (Fisher v. Minister of Public Safety and Immigration (No. 2) [2000] 1 AC 434, para. 40 (per Lord Slynn of Hadley and Lord Hope of Craighead, dissenting).

    The contemporary interpretation of one article therefore cannot displace the clear intention of another (Johnston v. Ireland, para. 53), and a fortiori ‘cannot unwrite provisions in the Convention’ (Quark Fishing Ltd v. United Kingdom).

    The Court is therefore not the custos morum of the member States of the Council of Europe, and does not outlaw State action simply on the basis that it is contra bonos mores.

    (I borrow these expressions from the speech of Lord Kilbrandon in Knuller (Publishing, etc) Ltd v. Director of Public Prosecutions [1973] AC 435, 496. At common law, the courts were traditionally regarded as having this function, but the House of Lords in Knuller disclaimed any such powers at least in the sense that the courts could no longer establish new criminal offences. I have no idea what the US view on this might be, but Justice Scalia’s criticism in Lawrence seems difficult to reconcile with any such concept of the judicial function – unless one would, not without reason, require of judges more modesty when dealing with the Constitution than when they pronounce on the common law, which is obviously of lesser rank.)

    I also feel that the Court might be doing itself a disservice when speaking of the ‘living instrument’ approach as something special and remarkable. This rather invites criticism of the kind exemplified by Justice Scalia and Diplomatic Gunboat.

    I, for one, see great force in the argument that the ‘living instrument’ approach is, certainly for the most part, stating the obvious:

    The Court has used the approach mostly in applying the proportionality test expressed in paragraphs 2 of Arts. 8 through 11 of the Convention (as ‘necessary in a democratic society’). But as Professor Christoph Grabenwarter has argued (Verfahrensgarantien in der Verwaltungsgerichtsbarkeit [Vienna: Springer, 1997], pp. 26 et seq.), the relevance of ‘present day conditions’ in that context, to the exclusion of those pertaining in 1950 or 1953 (the year of the Convention’s entry into force), is self-evident, even trite. In that context, the relevant conditions are, e.g., the ‘public morals’ to be protected by the State interference examined. Of course, the relevant public morals will be those existing at the time of the interference, just like the ‘rights and freedoms of others’, which might also be protected by the State at the cost of interfering with a person’s human rights, will be the rights and freedoms under the law as it stands at the time of the interference, not under the law of 1950 or 1953. Why, after all, could it possibly be necessary and proportionate to act in defence of ‘public morals’ that have ceased to exist 50 years ago?

    The phrase ‘public morals’, like the references to domestic law and other clauses, therefore refers necessarily to ‘present day conditions’, and thus demands a contemporary interpretation of the Convention in the result (or rather, a contemporary application), even without any special purposive rule of interpretation.

    This special rule is therefore only really necessary where there is no such warrant for a contemporary application. The interpretation of the phrase ‘private life’ just might be a case in point (but this was not the linchpin of the ‘living instrument’ analysis in Dudgeon, which concerned the proportionality issue). Also, the relevance of the views of the other member States of the Council of Europe may be more readily explained on the basis of a special rule than on the basis of the dynamic notions in paragraphs 2 of Arts. 8 through 11; the latter are more readily understood as referring to the present state of ‘public morals’ etc. in the member State concerned.

  6. Tobias,

    You and Marko make the point that the ECHR has actually taken a pragmatic approach (instead of the purely ideological approach of which it has been accused). Indeed that is true: ECHR has ruled there is a right to abortion to preserve eyesight (somewhere in there), but there is no right to wear a religious headscarf at college (despite Articles 9 and 10!). The latter results perhaps from the judges’ pragmatic desire to protect Turkish secularism, and to keep Turkey in the European fold, whereas they are not so restrained concerning Poland, Northern Ireland or Cyprus.

    The pragmatic stretching or contracting of rights via the living instrument approach undermines the Court’s legitimacy. Marko points out that the Convention has been successfully modified, repeatedly, by the adoption of the additional Protocols. Amendment by consent is available and availed of, so why defend judges amending without consent? In another example of consent being overrun, Article 57 allows a ratifying state to make a specific reservation as to its existing laws that do not comply with the Convention, but prohibits general reservations. How can a state predict specifically which of its existing laws will in the future be deemed by judges non-compliant with a ‘living’ Convention? Instead, it should be interpreted with reference to the Vienna Convention on the Law of Treaties (which leaves plenty of wiggle-room, but calls for supplementary means of interpretation only where there is ambiguity or an absurd result).

    There will always be disputes over interpretation, but you are smart to recommend that the advocates of the living instrument approach abandon the term, perhaps in favor of your ‘purposive construction’. One of the problems with pragmatism is that, when publicly displayed, pragmatism undermines itself.

  7. Dip Gunboat,

    So sorry, but you – just like Justice Scalia – are again simply off base when it comes to the facts (and that’s a part of my broader point).

    The European Court did NOT find that there is a right to abortion in the Convention to preserve eyesight. I repeat, it did not. What it did find in Tysiac v. Poland is that when a state indeed ‘decides to allow abortion, it must not structure its legal framework in a way which would limit real possibilities to obtain it’ (para. 116) and that ‘Polish law as applied to the applicant’s case contained [no] effective mechanisms capable of determining whether the conditions for obtaining a lawful abortion had been met in her case.’ (para. 124). So, when it comes to substance, the Court defered to Poland, but it required certain safeguards of due process.

    When it comes to headscarves in Turkey, the Court again deferred to the judgment of Turkey, which was made in a democratic process and applied for several decades. The Court’s deference was mandated by the application of the margin of appreciation principle, and by the special circumstances in which Turkey finds itself, in which an Islamic majority imposed restrictions on itself, and in which laicism is the guiding principle of the state. It is possible that the same reasoning would apply to France, but it would not apply to Germany. Different countries have different needs, and the Convention tries to accomodate them, within certain minimum boundaries.

    But, again, I repeat that no European state, no political party even, has objected in principle to the purposive approach to interpretation that the Court uses. How can in it then be illegitimate?

  8. Nations and groups of nations can certainly choose to have ‘living instruments’ if they desire, but that does not mean J. Scalia ought to stop worrying and learn to love the bomb. These decisions and their interpretive methods do have repurcussions outside their jurisdiction (certainly via the school of constitutional comparativism), and domestic U.S. Supreme Court decisions often have repurcussions which international commentators are often justified in addressing.

    One repurcussion of the ECHR’s interpretive approach is the undermining of the already under-utilized Vienna Convention on the Law of Treaties.

    As to Tysiac v. Poland, Poland had decriminalized certain abortions and the ECHR turned that into a private-life right inadequately protected by Poland, relying not only on Article 14 (Due Process) but primarily on Article 8 (Respect for Private Life).

    That raises concerns over other ‘decriminalization’ efforts such as marijuana: access to marijuana is suddenly turned into a private-life right inadequately protected; an affirmative defense becomes a protected entitlement.

    A habit and history of fuzzy-thinking can be dangerous, even if all the participants like it so far. But please do not mistake criticism of the European Court’s occasional interpretive method for criticism of the Convention itself and the important role that the ECHR can play among all the party states (particularly in Russia and Turkey) in firming the rule of law and protecting individual rights. Unfortunately, the living instrument approach, so vulnerable to politicization and so unnecessary when amendment is possible via legitimate means, can weaken the rule of law at the same time one is working to establish it.

  9. Diplomatic Gunboat,

    as to Tysiac v. Poland, you might do well to read this post on the case by Professor Alford, although, of course, that post and the comments only amplify Marko Milanovic’s points (in his latest comment).

    Also, the Court does in fact apply the Vienna Convention on the Law of Treaties: see e.g. Golder v. United Kingdom, para. 29; Al-Adsani v. United Kingdom, para. 55.

    Besides, the VCLT and the ‘living instrument’ approach are, of course, not mutually exclusive; if you wish to imply that interpretation under the VCLT would somehow necessarily be more conservative than it currently is in the Court’s case law, then you are misrepresenting the rules of the VCLT. As I have tried to show above, the ‘living instrument’ approach is little more than the faithful and direct application of the specific references in the Convention to present day standards in the fields of ‘public morals’, as in the field of the rights of others under domestic law. And even where the approach does go beyond this, it is still amply supported by the object and purpose of the ECHR (see references in my earlier comment) – which is obviously relevant in treaty interpretation, under Article 31(1) VCLT.

    And as for your argument drawn from the existence of amending and other Protocols: this is somewhat conclusory in nature, but even so, the Court is alive to this: see Soering v. United Kingdom, para. 103; Öcalan v. Turkey, para. 164. (Of course, I should also come back to my point that the ‘living instrument’ approach is, so far from being any form of amendment, usually no more than an application of the bare terms of the ECHR – or, indeed, a reasonably purposive interpretation of such terms)

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