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PAVEL BUREŠ
CYIL 5 ȍ2014Ȏ
from the antagonistic dichotomy expressed by opposite couples – individual
versus
State, individual rights
versus
State oppression (State interests), or balancing test
criteria relating to the interference to non-peremptory rights.
For this study, three cases were chosen to show that the style of argumentation
and deciding of the ECtHR is no longer sustainable for the overall perception of
human rights protection. All these cases relate to Art. 8 of the ECHR and to the
protection of family life. They all are somehow related to the notion of family, which
being first a sociological notion, also has its important role in the legal order.
8
The notion of family and the respect for family life is tackled in a large number
of ECtHR judgments.
9
Some of them are of strong importance to the interpretation
of the notion of family life (and so of the notion of family). It is the case
Marckx
v.
Belgium which is often mentioned with respect to the notion of family life and where
the interpretation was based on the doctrine of evolutive interpretation seeing the
Convention as a ‘living instrument’.
10
For this study three recent cases (X and Others
v. Austria, Costa and Pavan v. Italy, Mennesson and Others v. France) were selected
because all reflect the endeavour nowadays of the society to somehow define family
life with respect to Art. 8 of the ECHR.
Between Reality and Verity
The general function of law
11
is to regulate relations between members of the
society (and also between the members of the society and the society itself ), aiming
at stabilization and continuation of the society. In the history of philosophy (and
later legal philosophy) the basic question is still about sources of law (legal rules) and
an on-going antagonism or complementarity between “reality” and “verity”. Legal
rules should reflect the image of the society and at the same time should aim for the
peaceful stabilization and progressive continuation of the society.
12
If in other fields of law this specific (and never-ending) dichotomy between “Is”
and “Ought to” does not pose any greater or essential problems, in the field of human
rights protection this dichotomy is rather quintessential. The field of human rights
protection is not only characterized by an on-going searching for a very thin balance
8
One can argue that the notion of family as a legal notion is likely to be changed as it is a pure legal
notion which may be defined in any way a legislature wants. But we argue that the notion of family as a
sociological notion cannot be defined in this way, as it has an important role in the formation of society.
9
There are more than 3,800 decisions and judgments in the ECourtHR HUDOC Database filtered as
related to family life.
10
Tyrer v. United Kingdom
, n°5856/72, decision from 25 April 1978. Marckx v. Belgium, n°6833/74,
desicion from 13 June 1979.
11
However, this classical fuction of law is somehow questioned by some modern philosophical streams as
being self-sufficient in organization (or being on autopoeietic basis promoted e.g. by Luhman and, on
some points, Habermas).
12
We are here far from deciding with these simple words still on-going disputes on the relation between
the worlds of “Sein“ and “Sollen“ which were of great interest for legal philosophers such as Kant, Hume
or Kelsen. But we have to revive this discussion somewhat to show that, with regard to human rights
protection, where legal and moral rules are often in common contact, this dualism is of major interest.