Matei on Art on Trial: Freedom of Artistic Expression and the European Court of Human Rights

Andra Matei has published Art on Trial. Freedom of Artistic Expression and the European Court of Human Rights. Here is the abstract.

The way that art is judged in the courtroom shapes the way it is perceived at large and has a direct consequence on how it can be appreciated by the society. Surely, not all art is to everybody's liking. Even the judges at Strasbourg fall into subjective definitions of artistic merit sometimes, despite their commendable attempts to stay detached and open-minded. In the recent Sinkova v. Ukraine case, a divided Fourth Section of the European Court of Human Rights ruled that the applicant's conviction for an artistic performance featuring the applicant frying eggs over the Eternal Flame at a war memorial, did not breach her freedom of expression; finally, protecting the memory of soldiers from insult, outweighs the applicants right to free expression. The artistic nature of the applicant's actions is ignored by the ECtHR and in the absence of an explanatory context, the performance is dismissed as a senseless provocation. But how informed are judges in art theory and form and on what grounds do they speculate about artistic merit and motive? This essay will focus on the significance the ECtHR attaches to the protection of artistic expression and the ways in which it regulates the dynamics between artistic freedom and public morals. A cursory review of the relevant case-law (cases which have at their center controversial artworks) will show that, more often than not, when freedom of artistic expression is set against the need to protect public morals, or "the rights of others", the ECtHR favors the latter.

Download the article from SSRN at the link.

Tugendhat on Slavery and Comparative Law in Eighteenth Century England @LawLeicester

Michael Tugendhat, Leicester Law School, has published Slavery and Comparative Law in Eighteenth Century England as University of Leicester School of Law Research Paper No. 17-08. Here is the abstract.

This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

Download the article from SSRN at the link.

Tugendhat on Slavery and Comparative Law in Eighteenth Century England @LawLeicester

Michael Tugendhat, Leicester Law School, has published Slavery and Comparative Law in Eighteenth Century England as University of Leicester School of Law Research Paper No. 17-08. Here is the abstract.

This paper addresses the contemporary criticism to the European Court of Human Rights in the UK by underscoring how the English law on human rights has been positively influenced by the laws of other European countries, in the same fashion as English law has traditionally influenced such foreign laws. The means for this analysis is a case-study on the introduction of the French law on slavery and the subsequent implementation of such principles in England. Slavery had been abolished in France since the early 1300s. Moorish slaves brought to France were being freed from at least 1571, as was recorded by Jean Bodin in 1576. In England, slavery had practically disappeared at the sunset of the Middle Ages. It resurfaced in the French and American colonies in the New World in the 1600s. In the period 1730-1790 French courts, citing Bodin, freed over 200 slaves brought to France from the colonies. In Somerset v Stewart, 1772, English courts finally held that slavery was not recognised by English law, which led to the termination of slavery in England once and for all; and it was the influence of French courts’ decisions on the bestowal of freedom to foreign slaves that led to the reasoning of the English Court.

Download the article from SSRN at the link.

Tourkochoriti on Challenging Historical Facts and National Truths: An Analysis of Cases From France and Greece @IoannaTourkocho

Ioanna Tourkochoriti, Harvard Law School and National University of Ireland, Galway, School of Law, is publishing Challenging Historical Facts and National Truths: An Analysis of Cases from France and Greece in Law and Memory: Addressing Historical Injustice by Law (U. Belavusau and & A. Gliszczyńska-Grabias, eds., Cambridge University Press (2017).

The denial of crimes against humanity is a criminal offense in various European legal orders, e.g. France. The European Union has endorsed this approach through a Council Framework Decision that crystallizes legislation already existing in a number of Member States and asks others to consider enacting measures criminalizing this category of speech. This paper discusses the dangers for academic freedom from the need to express our collective disapproval of atrocities against humanity through memory laws. Memory laws serve collective needs, they express collective imaginaries that can be associated with a national identity or with a European conception of shared values. Drawing from Durkheim’s analysis of the collective consciousness it signals the dangers that exist when the irrational elements that form this consciousness win over the rational elements. Memory laws can serve to prescribe or proscribe an official version of historical truth. Using the mechanisms of state constraint against opinions that are contrary to this official version of the truth can be very dangerous for individual and collective liberties. This paper examines a number of cases where courts have imposed legal sanctions to those who made claims either denying the Holocaust, or challenging elements of national identity that seemed unacceptable to national authorities as well as legislative proposals attempting to impose an official version of historical facts. It also points out inconsistencies in the relevant case law of the European Court of Human Rights.

Download the essay from SSRN at the link.

Cohen on the Influence of the Choice of Official and Working Languages on the Workings of Courts

Mathilde Cohen, University of Connecticut School of Law, is publishing On the Linguistic Design of Multinational Courts — The French Capture in volume 14 of the International Journal of Constitutional Law (2016). Here is the abstract.

This Article discusses the importance of language in the institutional design of European and international courts, which I refer to as “linguistic design.” What is at stake in the choice a court’s official or working language? Picking a language has far-reaching consequences on a court’s composition and internal organizational culture, possibly going as far as influencing the substantive law produced. This is the case because language choices impact the screening of the staff and the manufacture of judicial opinions. Linguistic design imposes costs on non-native speakers forced to use a second (or third) language and confers a set of advantages on native speakers. It has profound implications on judgments as it imports a set of writing conventions that live on even as the institution becomes more cosmopolitan. Using the example of French at the Court of Justice of the European Union, the European Court of Human Rights, and the International Court of Justice, I argue that granting French the status of official language has led French lawyers and French judicial culture to disproportionately influence the courts’ inner workings. This is what I call the “French capture.”

Download the article from SSRN at the link.

The United Kingdom and the Protection of Human Rights

New from Hart Publishing: The UK and European Human Rights: A Strained Relationship? (Katja S. Ziegler, Elizabeth Wicks, and Loveday Hodson, Hart Publishing, 2015). Here is a description of the contents from the publisher's website.

The UK’s engagement with the legal protection of human rights at a European level has been, at varying stages, pioneering, sceptical and antagonistic. The UK government, media and public opinion have all at times expressed concerns about the growing influence of European human rights law, particularly in the controversial contexts of prisoner voting and deportation of suspected terrorists as well as in the context of British military action abroad. British politicians and judges have also, however, played important roles in drafting, implementing and interpreting the European Convention on Human Rights. Its incorporation into domestic law in the Human Rights Act 1998 intensified the ongoing debate about the UK’s international and regional human rights commitments. Furthermore, the increasing importance of the European Union in the human rights sphere has added another layer to the relationship and highlights the complex relationship(s) between the UK government, the Westminster Parliament and judges in the UK, Strasbourg and Luxembourg. The book analyses the topical and contentious issue of the relationship between the UK and the European systems for the protection of human rights from doctrinal, contextual and comparative perspectives and explores factors that influence the relationship of the UK and European human rights.

How Should Courts Evaluate Religious Sincerity?

Anna Su, University of Toronto Faculty of Law, has published Judging Religious Sincerity. Here is the abstract.

Religion in law is notoriously hard to define. And yet because religion is legally protected and enshrined in national constitutions and international law as part of the liberal commitment to freedom of religion, courts in various jurisdictions are left with the essential task of determining what religion is for the purpose of protecting it. One way courts have addressed the uneasy relationship between religion and secular law is to abstain from any involvement in the resolution of religious questions. Thus when confronted with accommodation claims from otherwise generally applicable laws or regulations on religious grounds, courts have largely focused instead on the sincerity of the believer as the primary factor of whether to grant the claim. In this paper, I look at three judicial settings: the U.S. Supreme Court, the Supreme Court of Canada and the European Court of Human Rights and consider their respective approaches to sincerity in accommodation claims. I argue that we must go beyond this uncritical embrace of the sincerity requirement, and consider the problems and costs associated with it.

Download the article from SSRN at the link.

Determining the Origins of Human Rights

Sandra Fredman, University of Oxford Faculty of Law, has published Are Human Rights Culturally Determined? A Riposte to Lord Hoffmann in The Jurisprudence of Lord Hoffmann (P. S. Davies and J. Pila, eds.; Oxford: Hart Publishing, 2015). Here is the abstract.

The relationship between issues which go to our ‘common humanity’ and those which are ‘culturally determined’ is a vexed one. Between a commitment to a thoroughgoing relativity and pure universalism lie many stopping points. Lord Hoffmann’s primary target is the European Court of Human Rights (ECtHR). The aim of this chapter, however, is to examine his arguments in the light of the increasingly lively transnational judicial conversation about the resolution of similar human rights questions in different jurisdictions. I argue that it is a mistake to address the question as if there were only two options: a universal right answer to human rights disputes or an answer which is culturally determined, precluding any further common ground. Instead, the interpretation of both the substance and limitations of human rights should be a deliberative process. There can be no aspiration to achieve absolute answers which apply in all contexts over all time but to engage in constant reasoned attempts to develop the understanding of human rights. It is through the process of deliberation, consensus building, and accountability that human rights take on a dynamic role in society.

Download the essay from SSRN at the link.