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Rulings of the European Court of Human Rights as a legal argument in Norwegian law compared to German

Tildelt: kr 19 999






2010 - 2010

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The main problem of my thesis is whether the influence on Norwegian legal argumentation currently afforded the rulings of the European Court of Human Rights by Norwegian legal practitioners, is fully justified. Is it possible that the obligations entered into by the ratification of the European Convention of Human Rights leaves more room for national-specific considerations than what is currently presumed by legal practitioners? And if so, should we take full advantage of this room for manouvering, in ord er to protect our national standards, or should we be as loyal to Strasbourg as we possibly can within the restraints of our own legal methodology? Exploring the advantages and disadvantages of both options, the goal is to determine whether the present-da y approach needs adjustment in one or other direction. I will start by outlining the framework of our international obligations. Next, I will present the legal position of the Convention in Norway, and give a brief introduction into Norwegian legal metho dology. This will lead up to an investigation of the patterns of legal argumentation adopted by the Supreme Court with the purpose of determining the place of Strasbourg rulings in Norwegian legal argumentation. The German approach to ECtHR rulings appea rs fundamentally different from the Norwegian, insofar as the ECtHR rulings seem to figure less prominently in German legal argumentation, while Germany nevertheless seems to fullfill her obligations under the Convention. I therefore presume that a compar ison with German law will further illuminate the extent of our obligations, and thereby the space for national-specific considerations. Finally, based on how the Norwegian Supreme Court and its German counterparts utilizes ECtHR rulings in their argument ation, I seek to answer the question of whether certain parameters indicate that a change in Norwegian argumentation patterns is necessary and/or desirable.