Methods of Lawmaking of the European Court of Human Rights: Do Hard Cases make Bad Law? A Case Study

Abstract

In the spirit of Professor Willem Witteveen and his academic fondness for judicial lawmaking, this article analyses the methods of lawmaking by the European Court of Human Rights in ‘hard cases’. To this end, a case study on the ‘hard’ topics of euthanasia and assisted suicide is conducted in light of the question whether hard cases make ‘bad law’. To answer this question, different cases on euthanasia and assisted suicide and the reception of these cases are considered. The analysis demonstrates that the Court appears to adhere to its established methods of interpretation when deciding cases concerning euthanasia and assisted suicide, particularly evidenced by the use of the margin of appreciation. When considering the application of the margin of appreciation by the Court in the selected cases, as well as the lack of consensus among Member States in these cases, it appears that the Court’s interpretations cannot be classified as bad law.