Legal Positivism. The Margin of Appreciation

Lautsi and others v Italy (2011) ECHR GC (Application no. 30814/06)

Essay, 2014

8 Pages, Grade: 67 (Merit) - UK System


Legal Positivism: The Margin of Appreciation

Lautsi and others v Italy [2011] ECHR GC (Application no. 30814/06)

In this essay, I will discuss the cogency of using legal positivism as a method applied in judicial human rights cases. Doing so, I will concentrate on H.L.A Hart's version of “soft” positivism, which puts emphasis on law as a coercive order based on the observation of social facts, and which stresses the separability of law and morality. The soft element of his approach shows with the former by going beyond lege lata taking into account also rules created by mere convention, and by the latter granting morality indirectly a place in law by vesting it in previously legally validated Rules of Recognition, the ultimate rules in a legal system specifying what the law is and indicating which obligations arise from it. (Hart, 1961) I will critique the positivist method from the interpretivist perspective focusing on Dworkin's account thereof, which accentuates law as integrity. His approach defines law by principles rather than rules, and as an attempt by society to generate public moral standards. Thereby, weighty considerations are at the heart of legal reasoning in order to fulfill requirements of justice and fairness. (Dworkin, 1986)

In my critique, I shall argue that legal positivism falls short of giving a clear account of how the rules are to be interpreted. To illustrate this point, I will use the Margin of Appreciation doctrine applied by the European Court of Human Rights in its ratio in the case Lautsi vs Italy. I will identify it under the legal positivist tenet as both a Rule of Recognition and a Rule of Adjudication. The reasons for this classification will be given in the main part of the paper. Having done so, I will, show that the application of legal sources – in this case Convention law and case law - alone is insufficient to make sense of the rules. First of all, this is evident in the Margin of Appreciation as a Rule of Recognition lacking conceptual clarity. Because it is neither able to determine under what degree of a lack of European consensus the state margin can be broadened, nor to accurately define the content and scope of the primary rules, namely Article 9 and Article 2 of Protocol I, under dispute. Secondly, it will draw attention to the Margin of Appreciation understood as a Rule of Arbitration as an insufficient standard of judicial review. The rule taken as an argument of policy – here, the need for the balancing of public and private interests deriving from interaction between Convention Articles 1 and 19 -, cannot account for the reasons and circumstances the former must prevail over the latter without weighted considerations. I will conclude by pointing out that legal positivism by denying any interpretive obligations to the legal sources generates indeterminacy of the rules.

The Margin of Appreciation: Rules over Principles

Starting out with a critical analysis of legal positivism requires us to explore the rational behind the Margin of Appreciation, as well as its first appearance in law; especially when considering that the method places the validity of any legal rule on its sources. (Hart, 1961, 100-112) In this respect we find that the Margin of Appreciation has its roots in German and French municipal law and can be classified as a General Principle under the European Convention of Human Rights (ECHR). This means it is not found in the text of the Convention itself but derives from the teleological approach of treaty interpretation reiterated in Articles 31 to 33 of the Vienna Convention on the Law of Treaties (VCLT). Thus, the Margin of Appreciation in the ECHR arises out of the interaction between Article 1 and 19, which prescribe standards of conducts but leave their implementation up to the member states (better position rational), while a court (ECtHR) assumes an evaluative function when enforcing human rights protection. (Clayton, Tomlinson, 2009, 314-315) The Margin of Appreciation together with its rational was first affirmed by the European Commission of Human Rights in its report on the Cyprus case, an inter-state dispute under the emergency situations of Article 15 and was further developed in the case law of the ECtHR to also apply to Article 14 (anti-discrimination provision) and in the jurisprudence of articles corresponding to “limitation clauses” such as Articles 8-11 (e.g. Handyside vs UK) upon which a government can under certain circumstances put restrictions. (Council of Europe)

Shedding light on the origin of the Margin of Appreciation already presents us with ambiguities that are relevant for how one should interpret the rules. Legal positivism might escape the critique of interpretivism of not being able to account for what sources the sources to explain the rules' validity by pointing to the fact that positivism does not only acknowledge codified rules, but also such created by convention. Hence, the acceptance of the Margin of Appreciation as a “common public standard of official behavior” by the authorities - in this case by the Commission, judges and member states - together with the rule's actual practice in the system, confirms its validity (Hart, 1961, 107-117) However, it can neither account for the rule's spill-over extending its coverage to various Convention articles, nor the rule's increasing complexity, without contextual interpretation. We shall see in more detail why sources alone are not able to explain any doctrinal developments in course of the analysis and what implication this brings about for the applicability of the Margin of Appreciation as a rule.

If we apply the legal positivist method to the case Lautsi vs Italy, the Margin of Appreciation can not only be classified as a Rule of Recognition indicating the primary rules or differently put, what the law is - in this case, Article 2 of Protocol I (right to education) read as lex specialis in light of Article 9 (freedom of religion), and Article 14 (discrimination clause) -, but also as a Rule of Adjudication being used as a standard of judicial review to determine when a right has been violated. (Hart, 1961, 94) In this regard, it can also be said to serve as an indicator for hard cases such as Lautsi vs Italy, in which a legal decision comes down to the discretion of the judge. (Itzcovich, 2013, 299-300) So in its analysis, the Court looked first at the ordinary meaning (VCLT) of the word “respect” in terms of parents' religious and philosophical convictions in Article 2 of Protocol I and “freedom of religion” of Article 9, which it found didn't include a ban on the display of religious symbols. In its reasoning the Grand Chamber referred to observations in similar case law such as Sahin vs Turkey, Dhalab vs Switzerland, Folgero vs. Norway and Zengin vs. Turkey. In a second step, the Court found that there's no European consensus concerning religious displays in state schools by examining the legislation of the members of the Council of Europe, upon which it decided on the applicability of a wide Margin of Appreciation. (Lautsi and others v Italy, 2011, para 57-81)

What seems striking here is that when the court considered the object and purpose of the treaty (VCLT), which is to protect the fundamental rights of individuals, together with the Conventions legislative intent granting member states some discretion in the realization of the Convention provisions – this was said to have been agreed by convention -, it still remains unclear how the court came to decide on the applicability of a wide Margin of Appreciation. From a legal positivist perspective, reference can be made to case law, namely Dickson vs UK, where the court found that the margin will be wider if there's no consensus among the member state and the state is required to balance private and public interests in relation to Convention rights. (Clayton, Tomlinson, 2009, 318) Nevertheless, from an interpretivist point of view it is questionable what degree of a lack of consensus is required for broadening the state margin as the Grand Chamber in Lautsi vs UK is inexplicit in this respect. It leaves to wonder whether, for example, heterogeneity among states is enough to increase the scope of the margin or if if takes the absence of a clear tendency towards a certain policy. (Iglesias Vila, 16) Especially with view to Sahin vs Turkey, it is notable that the court applied a wide Margin of Appreciation in favor of Turkey even though she was the only party to the Convention that prohibited the Islamic headscarf in public universities. (Clayton, Tomlinson, 2009, 319)

These ambiguities exemplify well the “all or nothing” approach of legal positivism falling short to account for a nuanced understanding of contextual differences. In this sense it is questionable whether the Margin of Appreciation was applied in its best light so that we can talk about a genuine legal attempt by society, or in this case the European community, to secure peoples' (moral) rights. (Dworkin, 1975, 1093-1095) Positivism would rebut this by referring to how much latitude is given to the member states depends not only on the lack of European Consensus, but also on “the nature of the rights” under dispute. In the case of Article 9 and Article 2 of Protocol I, with the former subject to “limitation clauses”, more weight needs to be given to balance competing interests to secure “the rights and freedoms of others”. (Council of Europe) However, when we look at the Court's application of the Margin of Appreciation in relation to the issue of religious symbols in educational environments, we'll discover an incoherent approach. Strasbourg has followed a secular path e.g. in Dahlab vs. Switzerland by prohibiting a primary-school teacher to wear an Islamic headscarf, in Dogru vs France by expelling a schoolgirl from physical education classes for refusing to remove her headscarf, and in Sahin vs. Turkey by banning Islamic headscarves at public educational institutions. Not so, in Lautsi vs Italy where the display of crucifixes in state classrooms was considered compatible with the Convention. (Ronchi, 2011). This arguments clearly supports the interpretivist notion of law as integrity and raises doubts about the lack of contextual coherence under the positivist tenet since the Margin of Appreciation applied as a rule rather than a principle lead to different results in similar cases. (Bettystoneman, 2012)


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Legal Positivism. The Margin of Appreciation
Lautsi and others v Italy (2011) ECHR GC (Application no. 30814/06)
University College London  (School of Public Policy)
67 (Merit) - UK System
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ISBN (eBook)
ISBN (Book)
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legal, positivism, margin, appreciation, lautsi, italy, echr, application
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Anna Scheithauer (Author), 2014, Legal Positivism. The Margin of Appreciation, Munich, GRIN Verlag,


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