In other words, the UK did not need a document setting out "human rights"; the rest of Europe most certainly did.
Lord Sumption's and Lord Hoffman's primary contention is that the UK delegates in 1950, when the Convention was drafted, did not intend that the document would do very much at all. It is right that the British believed this in 1950. The question is, did the delegates from other countries involved in the drafting of the document believe this as well? Professor Danny Nicol, a Reader in Law at Reading University, examines these claims about the framers, and concludes that not all of the framers shared the British view about the limitations to be imposed on any court interpreting the Convention.6 Professor Nicol concludes that most of the framers saw the Convention as something more than merely an insurance policy against dictatorship.
With regard to the question of whether the Convention should not be interpreted purposively, as a "living document," but instead should be interpreted according to the "original intention" of the framers, Professor Nicol points out that the Council of Europe's founding statute, at Article 1, provides that the Council's aim is the maintenance and further realisation of human rights and fundamental freedoms. Nicols also points to the creation of the European Court itself as further proof that a majority of framers believed the European Convention should be a "living instrument," to be interpreted by a court free of democratic pressure.
Nicols examines the actual statements made by various framers in the travaux prepararatoires, and concludes that there was in fact never a consensus to limit the Court to the "original intent" of the framers. In his view, the desire to limit the ECHR to an anti-dictatorship device cannot be considered as representing the general view of the delegates. The negotiators were instead split into two camps with competing ideologies. One camp contended the ECHR should serve only to protect existing rights; the other contended it should be a cross-border Bill of Rights.7
Sir Nicholas Bratza, a former President of the European Court, forcefully set out the reasons the European Court was right to interpret the Convention in the way it has in a speech given in 2013 and later published by the European Human Rights Law Review. He first set out the "originalist" view that the Convention must be interpreted in a manner consistent with the views of framers in 1950:
This picture requires that it be possible to share a subject matterwithout sharing truths that define it. Interpretivism about lawimplies the possibility of disagreement about the grounds of law,because it makes law's constitutive explanation a matter ofsubstance—specifically, a matter of the moral justification ofthe role of institutional history in the determination of rights andobligations. Notice that the possibility of disagreement about groundsis implied not only by the controversial nature of morality, butalready by the substantive (therefore potentially controversial)character of the grounds. If the question of grounds is substantive,we can disagree about what they are without changing thesubject. Unsurprisingly, this is the issue with which Dworkinbegins Law's Empire (1986).
PLATONIC PHILOSOPHY and NATURAL LAW V. S dworkin right answer thesis
In Dworkin's own words, his "right answer thesis" may be interpreted through the following words:
Suppose the legislature has passed a statute stipulating that "sacrilegious contracts shall henceforth be invalid." The community is divided as to whether a contract signed on Sunday is, for that reason alone, sacrilegious. It is known that very few of the legislators had that question in mind when they voted, and that they are now equally divided on the question of whether it should be so interpreted. Tom and Tim have signed a contract on Sunday, and Tom now sues Tim to enforce the terms of the contract, whose validity Tim contests. Shall we say that the judge must look for the right answer to the question of whether Tom's contract is valid, even though the community is deeply divided about what the right answer is? Or is it more realistic to say that there simply is no right answer to the question?
if this is right then Dworkin must embrace the fictional concept ..
While working for Judge Learned Hand, Dworkin met his future wife, Betsy Ross, with whom he would have twins Anthony and Jennifer. Betsy was the daughter of a successful New York businessman. They were married from 1958 until Betsy died of cancer in 2000. Dworkin later married Irene Brendel, the former wife of pianist .
Law, Philosophy of | Internet Encyclopedia of Philosophy
Dworkin's critics argue not only that law proper (thatis, the legal sources) is full of gaps and inconsistencies, butalso that other legal standards (including principles) may beinsufficient to solve a hard case. Some of them are .In any of these situations, even Hercules would be in a and none of thepossible answers would be the right one.
Jurisprudence Notes LLB pdf | Sunanda Tewari - …
In the essay "Do Values Conflict? A Hedgehog's Approach" (, Vol 43:2), Dworkin contends that the values of liberty and equality do not necessarily conflict. He criticizes 's conception of liberty as "flat" and proposes a new, "dynamic" conception of liberty, suggesting that one cannot say that one's liberty is infringed when one is prevented from committing murder. Thus, liberty cannot be said to have been infringed when no wrong has been done. Put in this way, liberty is only liberty to do whatever we wish so long as we do not infringe upon the rights of others.
Policy Review | Hoover Institution
Dworkin defends his position saying that everyday judges, muchlike everyday people, find their way and choose between options and that were supposedto be incommensurable. Dworkin also argues that it is always to find outother rules or principles in order to solve the conflict betweenthose we had in mind. The same counter-argument, however, regardingprinciples and moral standards that are incommensurable, would seemto apply to any further principles or rules we may discover in theprocess. In other words, the claim that there may always be moreprinciples or rules to be taken into account proves nothing aboutthe nature of those further principles, or about Dworkin's claimthat the exercise, in the hands of the omnipotent Judge Hercules,will eventually come to a stop (when we have reached the rightanswer). In fact, the opposite conclusion could just as well bedrawn from Dworkin's claim - that the exercise in question, underthe guidance of such an omnipotent figure, would extend intoinfinity. Thus while a 'right' answer may be available at any givenstage, no final right answer would ever be arrived at byHercules. Or, there is nothing to suggest one way or the other.