Conveners: Professor Mads Andenæs, Professor Janneke Gerards, and Professor Antoine Buyse
Background of the workshop
Over the past decades, many scholars have analysed and commented on the work of the European Court of Human Rights (ECtHR), making it probably one of the most researched international courts in the world. Legal scholars, legal theorists and philosophers have studied the Court’s case law using the Court’s own methods, highly qualitative methods and classical-doctrinal methods, whether through the lens of national traditions and national (constitutional or administrative) law, or from the viewpoint of public international law. Some are interpretative analyses of small samples of case law – that is, legal-comparative studies – comparing the ECtHR’s work with that of other supranational courts, such as the Court of Justice of the EU (CJEU), or federal courts, such as the US Supreme Court. Others are in-depth philosophical and theoretical studies on the foundations and meaning of human rights and their interpretation by the ECtHR. Still others are legal historical studies of the development of the Convention and the Court over time.
Beyond such legal or philosophical scholarship, political scientists and other social scientists have shown an increasing interest in the ECtHR. Several of these studies position the ECtHR case law in its wider societal context and offer anthropological or sociological analysis and critique, including feminist or postcolonial perspectives. Others are particularly interested in the Court as an institutional or strategic actor and in its relations with states and other relevant institutions, such as the CJEU or the Committee of Ministers. Analyses of the Court’s legitimacy are common, often concentrating on the behaviour of the Court’s judges, studying voting behaviour and separate opinions. In such research, qualitative (and sometimes quantitative) empirical methods play an important role. More recently, technological innovations in deep-text and big-data analysis have allowed several teams of scholars to search large sets of case law for patterns in the Court’s reasoning or correlations between the use of certain terminology and external developments such as political resistance or backlash. Assessing degrees of compliance with the Court’s judgments is another emerging field of scholarship, which builds on different academic disciplines.
The wide-ranging scholarship shows that there are many ways to study the ECtHR and its work. Important differences and debates exist between scholarly fields, sometimes also concerning their methods. ECtHR scholars are not always aware of all these debates. Legal philosophers and legal historians often lack familiarity with the many insights provided by political scientists. Political scientists sometimes seem to base their hypotheses and coding on foundations that legal and constitutional scholars might debate. Many of those who study the Court’s case law through close reading and interpretation of judgments question the merits of quantitative methods and deep-text analysis. Similarly, some scholars who rely on quantitative methods seem to think that qualitative and doctrinal methods are old-fashioned since the latter leave the many possibilities of large-N data analysis unduly unexplored. Critical social science scholars at times find both approaches lacking, insisting on the role of discourse and power structures in legal judgments and the language used.
Surely, there is no one ‘right’ way to study the ECtHR. The richness of the many different approaches simply mirrors the multifarious research questions and issues identified. At the same time, debates over how to study the Court’s case law and how to interpret the results suggest that it may be useful to initiate a discussion between scholars working in different fields on the use of their methods. Why do they think the methods they use are well-suited to the research subject? How does the specific approach add to scholarship and to our understanding of the ECtHR? What do these methods entail and what kind of results can they yield? And how can scholars conduct their research in a methodologically sound fashion?
Aim of the workshop
This workshop aims to bring together a number of expert researchers working on the ECHR system, in different fields, from different perspectives, and using different methods. The invitation is to critically review one’s own methodology and that used by others, to learn from each other, and to discover collaborative opportunities, including interdisciplinary and multidisciplinary ways of studying the ECtHR’s case law. It is set up to foster dialogue and discussion.
Draft programme
Thursday 12 May (afternoon)
- 13.15-13.30 Opening, welcome and explaining the setup
- 13.30-15.00 Session 1 – Critically contextualising the case-law: critical legal studies and historical approaches
- 15.00-15.30 Coffee and tea break
- 15.30-17.00 Session 2 – Tackling the case-law from a philosophical and theoretical perspective
- Evening: conference dinner
Friday 13 May (morning)
- 9.00-10.30 Session 3 – Classic legal qualitative case-law analysis
- 10.30-11.00 Coffee and tea break
- 11.00-12.30 Session 4 – The quantitative turn: Large-N (semi-automated) case-law analysis
- 12.30-13.00 Overall issues and wrap up