A New Philosophy for the Margin of Appreciation and European Consensus

Abstract

The article advances an anti-foundationalist account of the key doctrines of the European Court of Human Rights (ECtHR): the margin of appreciation (MoA) and European consensus (EuC). The first part of the article argues that anti-foundationalism, which understands the existence of human rights as ultimately dependent on social practices and their justification as based on a plurality of values, is a credible conception of human rights grounds. The second part contends that anti-foundationalism offers the best explanation of the MoA and EuC, without making the ECtHR's practice less normatively appealing. These arguments challenge the dominant critiques of the MoA and EuC, which often assume, but rarely explicitly defend, a foundationalist understanding of human rights. While the ECtHR's use of the MoA and EuC can be inadequate, this is not because it is mistaken about the grounds of human rights.