What is dialogical about human rights adjudication?

• Department of Law

The Human and Fundamental Rights Working Group and the Constitutionalism and Politics Working Group invite you to their next event

Abstract:

This paper argues that the European Court of Human Rights is developing a dialogical model of adjudication, though not always in explicit or deliberate fashion. The claim is that this model is remarkably different from the two other dominant models to understand adjudication in the area of human rights. On the one hand, the rights-based model of adjudication as explained by scholars like Ronald Dworkin, George Letsas, Stephen Greer and Conor Gearty; on the other hand, the model of weighing and balancing proper to proportionality analysis, as described by Robert Alexy, Matthias Klatt & Moritz Meister, Kai Möller, David Beatty etc. The heart of my talk will try to explain how to conceptualize the dialogical model and what makes it significant from a jurisprudential perspective. In the last analysis, I will argue that the dialogical model is built upon and enacts a tension between two distinct and irreducible notions of democracy, which displaces the obsession with the counter-majoritarian difficulty.  

Julen Etxabe is Assistant Professor and the Canada Research Chair in Jurisprudence and Human Rights at Peter A. Allard School of Law, University of British Columbia. Prior to joining UBC, Professor Etxabe was a Core Fellow at the Helsinki Collegium for Advanced Studies and postdoctoral researcher at the Center of Excellence in Foundations of European Law. Etxabe holds doctoral and LLM degrees from the University of Michigan Law School and an LLM from the European Academy of Legal Theory. He is the author of The Experience of Tragic Judgment (Routledge, 2013) and has edited three other books.