Fairness and Harm: Individual Opinions in the European Court of Human Rights

• In Event: Courts in the European Union

Abstract

Judges frequently use language strategically. Extant scholarship focused on the rhetorical strategies majority opinions employ to persuade external audiences. Less is known about how judges craft their individual opinions and what functions such opinions might serve. We argue that judges use individual opinions strategically to influence the future direction of case law and they do this by invoking considerations of fairness and harm rather than pure legal language. Accordingly, we expect dissenting opinions to contain more of the aforementioned rhetorical strategy than other types of individual opinions and that the reliance on such language will increase as the ideological distance between the dissenting judge and the majority judges increases. We evaluate our argument using quantitative text analysis on more than 3,000 individual opinions authored by judges from the European Court of Human Rights (ECtHR). Appointed from 47 different states, ECtHR judges often disagree concerning the application of human rights law. In this context, we show that rhetorical strategies employed in individual opinions offer unique insights into how judges respond to disagreements and view the future role of the Court.

Authors

• Øyvind Stiansen, University of Oslo

• Zoltan Fazekas, Copenhagen Business School