European humanism – tradition and innovation
Why a historical functional reading of the European Convention on Human Rights matters more than ever in these days of commemorating the liberation of Auschwitz 75 years later. By Professor Ulrike Müßig
The historical functional reading of the European Convention on Human Rights (ECHR) reveals what justice, in its essence, means: According to the protective intent, traceable in the signatories’ common heritage, the conventional fair trial guarantee includes the stipulation that there is a trial at all. This right of access to justice concerns ‘one of the universally recognised fundamental principles of law’, as the European Court of Human Rights (ECtHR) put in its case of Golder vs The United Kingdom. Syd Golder was serving a 15-year prison sentence for armed robbery in Parkhurst Prison on the Isle of Wight. In the 1960s, this prison was a ‘British Alcatraz’ and any prisoner’s communication in connection with any legal business was subjected to the leave of the Secretary of State, which had been denied to Golder. The UK’s argument ‘no trial, no unfair trial’ before the former European Court of Human Rights (1975) would have left Golder without any legal remedy and therefore without any chance to have his prison records cleared for release on parole
European conception of the rule of law
My specific combination of the historical reasoning with the international legal acquis reveals the intent of the conventional guarantees as a vital and integral aspect to justice. No formalism is allowed to infringe the substance of the right of access to justice. The commitment towards the ECHR signatories’ ‘common heritage’, which has been emphasised in the ECtHR’s reasoning in Airey./.Ireland and Tyrer./.The United Kingdom, among others, reveals the fact that a European conception of the rule of law has existed far longer than the advent of liberal constitutionalism. My historical comparative analysis in Reason and Fairness (Leiden: Brill, 2019) of the fair trial guarantee in Art. 6 ECHR in the light of the actual judicature from the beginning of the Convention until now shows what is at stake by testing the scope of the conventional term of ‘law’: the confidence that courts enjoy in the public sphere of a democratic society.
"Such a historical functional reading of the European Convention on Human Rights is not only limited to academic word plays in the ivory tower; rather, it really matters in these days of commemorating 75 years after the liberation of Auschwitz."
Professor Ulrike Müßig, University of Passau
The same effectual persuasiveness (or persuasive effectualness) applies to the convention concept of a ‘tribunal’, and especially to the historical explanations in regard to the functional judicial independence. This means, that impartiality by functional independence must be maintained as much as a matter of appearance as a matter of reality: the exclusive legal commitment of judges to adhere only to the law must not only be met but seen to be met. In addition, it makes it clear, that business distribution and bench composition in advance by law or another abstract general statutory regulation amount to extra safeguards of the functional independence of the courts. The wide functional understanding of the historic ‘legality’ of courts reads within the modern conventional context as a synonym for a fair and impartial judgement — not in the sense that fairness and impartiality were different attitudes whose sum matches the conventional goals, but insofar that the human rights standard of the ECHR expresses the specific (rational) European idea of justice, that fairness, legally determined, is governed by reason.
Unique responsibility for human rights protection
Such a historical functional reading of the European Convention on Human Rights is not only limited to academic word plays in the ivory tower; rather, it really matters in these days of commemorating 75 years after the liberation of Auschwitz. It contributes to Europe’s understanding of its (arguably unique) responsibility for human rights protection, given that, for all its pride in both its cultural and common constitutional heritage, ‘Europe is also the home of [...] two world wars and many concentration camps’, as Holocaust-survivor and philosopher Ágnes Heller put in this interview. The perverse irony of the sign that greeted new inmates at the Buchenwald concentration camp, promising ‘to each his own’ (Jedem das Seine, Latin: suum cuique), is symbolic of the vulnerability of human beings, as well as their susceptibility to empty promises without the legal force of rights to be exercised. The functional reading of the fair trial guarantee focusses on the interests of the legal addressees and not the decision-maker; it is in this context, that ordinary judicial competences (and the common European antonymy to extraordinary commissions) provide exactly the normativity and legal certainty as the benchmarks of justice. These characteristics, as Gustav Radbruch argued in his Legal Philosophy (1932!), are precisely those which make the suum cuique ‘valid and resilient.’
Last but not least, such an approach highlights the universality of human rights. In today’s political environment, the challenges that we as human beings collectively face make this universality more important than ever before. According to Gustav Radbruch ‘[j]ustice means correctness as related especially to the law’. He establishes human liberty as the grounding ‘principle for the constitution of a community’, as Kant had already suggested in his Über den Gemeinspruch of 1793; correctness, in the public context of exercising state power, requires respect of citizens’ freedom. The ‘personal dignity of human beings as core element of individual liberties is to govern the (fundamental) law’, as Carlo Schmid put it. To me, this is the essence of the ‘reasonableness of the categorical imperative’, which is at the centre of the universality of human rights.