CONVENTIONAL WISDOM: ECHR AND THE CHANGING LEGAL ARGUMENT IN EUROPEAN COURTS

The topic of this project is the different ways in which the ECHR has changed legal reasoning in the French, German, and UK judiciaries. Mitchell Lasser, in his recent book Judicial Transformations (UOP, 2009), has described this development in the follow ing terms: Fundamental rights are exploding in European courts; all over Europe the rights revolution is transforming the judicial landscape at breakneck speed, unleashing a mad and fascinating scramble to master the emergent fundamental rights regime. Th ere is no denying the success in Europe of the fundamental rights idiom, by which is meant the framing especially of questions of public law in terms of the rights of a person vis-à-vis the state. Social problems which were earlier conceived of in a numbe r of different ways are now viewed through the optic of rights. Until recently European judicial orders - such as those of France, Germany, and the UK - were often indifferent, even inimical, to actionable fundamental rights claims. In the twenty-first ce ntury, however, such claims seem to be a matter of course. The fundamental rights idiom has not only altered but provoked an ongoing revolution in European procedural, doctrinal, institutional and conceptual structures. But although change has been widesp read in the three jurisdictions at which I propose to look, the jurisdictions have reacted in different ways to the onslaught of change coming in the wake of their incorporation of the ECHR into municipal law. It seems to me that the different legal ident ities of these three different jurisdictions have affected this process in important ways. The twofold research question of this project, then, is: (1) How has the ECHR changed legal reasoning in national supreme courts in France, Germany, and the UK; and (2) how have the different identities of these three jurisdictions affected this process - how has the national legal identity meshed with the fundamental rights idiom?