Borrowed Words and Judicial Gestalt: A Dialogical Reading of Hirst, the ECtHR and Prisoner Voting Rights

Abstract

This article suggests that judgments of the European Court of Human Rights exhibit a textual quality that Mikhail Bakhtin called dialogism, namely, a kind of discourse constituted by a plurality of mutually effecting and interpenetrated voices. Such compositional choice is not just a lengthy prolegomenon to any decision, nor an unnecessary appendix that could be safely eliminated; it is actually fundamental for the construction—and comprehension—of any ECtHR opinion. In this article, I will focus on the 2005 case of Hirst, in which the Grand Chamber declared that the UK legislative blanket ban on prisoner voting is incompatible with the European Convention of Human Rights. As a controversial case about as-yet live-wire issues, Hirst can be shown to be a profoundly dialogized text despite all appearances to the contrary, which paves the way for a more general argument about the dialogical practice of adjudication by the Court.