Home International Tribunals European Court of Human Rights The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life”

The dilution of the family in human rights: Comments on Vallianatos and other ECHR cases on “family life”

Published on March 25, 2014        Author: 

In the decision of Vallianatos and others v. Greece (No. 29381/09 and 32684/09) delivered on 7th November 2013, the European Court of Human Rights (the Court) considered that two adult men living separately should benefit from the protection granted to families in the particular case where they maintained a stable homosexual relationship. On this occasion the Court affirmed that, from now on, when a European State legislates as regards the family, it “in its choice of meansmust necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (§ 84). The Court thus ensures that European States adapt their legislation to (its own perception of) the evolution of morals. This decision marks a new stage in the accelerated dissolution of the legal definition of the family which from a biological and institutional reality has become a concept which is flexible to the point of inconsistency.

The family constituted by marriage and/or children

The European Convention on Human Rights (the Convention) protects “private and family life” in the same provision (Article 8), along with the home and correspondence. However, the Court has progressively distinguished the protection of private life from that of family life. Private life is a broad concept which does not lend itself to an exhaustive definition. The essential goal of the protection afforded by it is to protect the individual from the arbitrary interference of the authorities and it may in addition create positive obligations inherent in an effective “respect” for private life (Olsson v. Sweden, No. 10465/83, 24.03.1988). As for the protection of family life, it focuses primarily on the relationship between children and their parents. According to the traditional case law of the Court, the right to respect for family life “presupposes the existence of a family” (Marckx v. Belgium, No. 6833/74, 13.06.1979, § 31) or of a potential relationship that could have been developed, for example, between a natural father and a child born out of wedlock (Nylund v. Finland, No. 27110/95). Thus, the Court considered that in the absence of marriage it is the existence of a child which was constitutive of family life (Johnston v. Ireland, No. 9697/82, 18.12.1986). Unmarried couples without children could not claim the benefits of the protection afforded to families (Elsholz v. Germany [GC], No. 25735/94, 13.07.2000).

Similarly, the Universal Declaration of Human Rights protects each person against “arbitrary interference with his privacy, family, home or correspondence” as well as against “attacks upon his honour and reputation” (Article 12).

As was solemnly stated in various international instruments, the family is recognised and protected as a “fundamental group of society and the natural environment for the growth and well-being of all its members and particularly children” (Preamble to the Convention on the Rights of the Child). The protection does not target the couple but the family which “is entitled to protection by society and the State” (Article 16§3 of the Universal Declaration of Human Rights and 23§1 of the International Covenant on Civil and Political Rights) “while it is responsible for the care and education of dependent children” (Article 10§1 of the International Covenant on Economic, Social and Cultural Rights). In fact, the recognition given by society to the couple results from its contribution to the common good through the foundation of a family; not by the existence of feelings between those constituting the couple which comes within the scope of private life.

While the Court has long retained this natural understanding of the relationship between the family and society, the evolution of morals has led to the reconstruction of this relationship. Certainly, the emergence of LGBT rights has actively contributed to the upheaval of the legal understanding of the family. However, the cause of this upheaval is more to be seen in the emergence of a right to the social recognition of emotional relationships and marriage, conceived as an autonomous value, like an individual freedom independent of its social purpose, which is now the foundation of the protection of the family.

LGBT rights: from private to family life

The history of the case law on LGBT rights is in part the story of the passage from protection under private life to protection under family life. Even though, initially, the Court accepted the criminalisation of homosexual relations (e.g. Dec. ECHR No. 104/55, 17.12.1955, No. 7215/75, 7.07.1977), it subsequently considered that ultimately these relations should be ignored by the law and are covered by the protection granted to private life. Thus the Court censured interferences of the State, particularly those concerning the criminalisation of homosexual relations between adults (Dudgeon v. UK, No. 7525/76, 22.10.1981). It is only in combination with the principle of non-discrimination, in comparison with heterosexual persons or couples that the invocation of the protection of private life made it possible to protect the rights of homosexual persons. For example, it was thus used in the allocation of parental authority (da Silva Muta v. Portugal No. 33290/96, 21.12.1999) or in the authorisation to adopt children (Fretté v. France, No. 36515/97, 26.02.2002). In the case of Kerkhoven and Hinke v. Netherlands (No. 15666/89, 19.05.1992), the Commission refused to equate a stable relationship between two women and a child born to one of them to family life, only granting this relationship the protection of private life.

It was with the decision of Schalk and Kopf v. Austria (No. 30141/04, 24.06.2010) that the Court modified its position stating that homosexual relationships exceeded the scope of private life and warranted public recognition, no longer in the punitive aspect, but as a legitimate family lifestyle. Having regard to the legislative developments in Europe, the Court judged that the relationship of a “cohabiting same-sex couple living in a stable de facto partnership (…) falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would” (§ 94) and not only in the field of private life.

Since the decision of Schalk and Kopf the stable cohabitation of the members of the couple is sufficient to constitute family life, marriage or the presence of a child no longer being necessary. With the Vallianatos decision even cohabitation is no longer necessary according to the Court as “individuals of full age, who, (…) are in same-sex relationships and in some cases cohabit” also lead a family life (§ 49). It is true that the Court has never considered cohabitation necessary in cases where the spouses were married or divorced, or if there was a child, because it is marriage or the child which establishes family life.

This development was initiated by Goodwin v. United Kingdom (No. 28957/95, 11.07.2002) in which the Court held that the right to marry exists independently, irrespective of the family. The Court has thus abandoned the idea according to which marriage is the form and the family is the substance, of a unique “right to marry and to found a family.” Marriage has become a substantial asset and a right in itself, by its social and symbolic dimension, regardless of its first concrete purpose as considered by the law.

Having established the principle of equivalence under the protection of family life between a same-sex couple without children and a biological family, the Court draws the consequences of this: for example in Schalk and Kopf and Vallianatos concerning the legal recognition and protection of the relationship or in the case of X and others in relation to the ability to raise a child. The Vallianatos case, following the decision of X and others (§146) is an application of this abstract egalitarian logic which reduces the biological (objective) differences between a same-sex couple and a biological family to a simple (subjective) difference of sexual orientation which is unable to justify, in itself, a difference of treatment.

A family life without objective content

Finally, at this stage of the evolution of the case law, what is the content of family life under Article 8? Do we know yet, since from now on family life requires neither public engagement, nor the presence of a child, nor even cohabitation in order to exist. Is “family life” under Article 8 of the Convention characterised by the existence of feelings? But, the law has always ignored feelings, considering them to fall within the scope of private and not family life, just like consensual sexual relations between adults (except in special cases). Is it then the stability of the relationship (Vallianatos, §73)? But that is a relative criterion. Two related cases reinforce the observation that the objective definition of family and family life has been lost.

In the case of Burden v. United Kingdom (No. 13378/05, 29.04.2008), the situation of two unmarried sisters who had always lived together was compared to that of other same-sex couples, the former not being allowed to enter into a civil partnership and benefit from the exemptions in the area of inheritance law attached thereto. Without having determined whether the sisters led a family life the majority of the Court held the situations to be non-comparable because partnership is forbidden for “persons who have close family relations” (§ 62). The Court added: “Rather than the length or the supportive nature of the relationship, what is determinative is the existence of a public undertaking, carrying with it a body of rights and obligations of a contractual nature” (§65). Yet the sisters complained of precisely the same thing as in the Vallianatos case: not having access to partnership for an unjustified reason, and the Court did not say what in the facts justified this difference. Nevertheless we can retain from the Burden case that, for the Strasbourg judges, “the length or the supportive nature of the relationship“, in other words its stability, is not determinative.

While in the Burden case the Court did not mention sexuality, the Court did so in the case of Stübing v. Germany (No. 43547/08, 12.04.2012) in refusing to recognise that a brother and sister living with their four children, could claim the protection granted to family life, on the grounds of the European consensus condemning incestuous relations (§ 61).

An arbitrary definition of the family

Finally, since we have renounced marriage or the presence of a child as a criterion of family life, it seems to be difficult to establish other objective, and therefore non-arbitrary, criteria. Several dissenting judges have substantially criticised the Burden decision as being arbitrary because it is purely positivist. But who decides the existence of a family life if the facts are not decisive? Is it the judge, the law or the people involved in the relationship? If the decision belongs to the judge and the law, it will therefore be contingent and relative to cultural developments.

Any person claiming to lead a family life could assess as arbitrary their inability to enter into a civil partnership. Thus, the Greek law does not allow more than two people to contract even though the Court has recognised that a polygamous family leads a family life (Serife Yigit v. Turkey, No. 3976/05, 2.11.2010, § 90). Similarly, several European countries reserve civil partnership to same-sex couples, thus creating a new type of discrimination against different-sex couples.

In the near future, on the occasion of two cases currently pending before the Strasbourg Court (Oliari and A. v. Italy and Felicetti and Others v. Italy; Francesca Orlandi and Others v. Italy), the Court may extend the Vallianatos case law by affirming that all couples leading a family life must, without discrimination based on sexual orientation, be able to obtain official recognition of their relationship as long as a similar recognition is offered to certain couples. Such an analysis would require the European States which do not allow homosexual marriage to offer an alternative and similar form of recognition to same-sex couples, such as civil partnership. If the Court establishes such a right, the next stage will then be the raising of the rights associated with this partnership to the level of those associated with marriage. Finally, the two positions will be distinguishable less by rights than by the obligations which will possibly remain more important in marriage.

This process of the legal dissolution of the “family” has evidently not been completed: the questions of polygamy, new forms of “multi-parenthood” and of the inequality of rights attached to marriage and civil partnership remain. This process is not an inevitable historical phenomenon, it is the inheritance of legal and political decisions which, step by step, have lead the Court to the opposite of the original intention of the authors of the Convention, who wished to protect families from the State, and not to entrust to the State the power to define the family. The Strasbourg Court does not merely follow the evolution of mentality; often it precedes and guides it, acting as “guide” to national courts and legislators.

The Court has also applied this power of defining reality, which exceeds the power of interpretation of norms, to the terms man and woman. It has effectively declared, in order to extend the right to a transsexual person to marry a person of the same biological sex that it “is not persuaded that at the date of this case it can still be assumed that these terms must refer to a determination of gender by purely biological criteria” (Goodwin, 2002 § 100). Man and woman are redefined as designating the psychological, social or biological sex, that is to say the “gender”. Thus family, and even sex, are no longer tangible realities upon which the law can be stably founded, but are relative and dynamic “notions” defined by a right which is also relative and dynamic. By acquiring the power to redefine reality – the legal norm replaces reality as a criterion of (social) truth – the right thus becomes a privileged instrument of social engineering. This legal redefinition of reality leaves no room for moral contention because it claims to state that which is, and furthermore, it claims to be that which is. According to the original conception of the authors of the Convention and other major texts of the post-war period, the State emanates from the society which is constituted by families, and therefore the family precedes the State. According to the new conception, it is the State, which through its hold on society redefines the family according to the dominant thinking and demands. This change in perspective demonstrates the modern rerouting of human rights theory: initially founded upon natural law humanism, it has today become a privileged instrument of the implementation of liberal individualism which, by an ironic paradox, reinforces the State’s hold over society in exchange for the promise of greater freedom for individuals.

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22 Responses

  1. d.d.

    What is this homophobic rant all about? If the ECtHR hadn’t applied a “living interpretation” of the Convention in earlier cases, we would still allow for death penalty in Europe. Is this what you suggest as well, together with the recognition of family as a “reality” founded upon the marriage of a man and a woman?

  2. Jakob Cornides Jakob Cornides

    It appears that the Court did not yet (and will probably not) dilute the notion of “marriage”, but it has diluted the notion of “sex” (= not necessarily biological) and of “family” (= not related to children, nor to mutual supportiveness … but to what??).

    Do we know of other examples? Or are these the only ones? I can’t help it, but I think that, beyond the issues that make the headlines in contemporary culture wars, this contribution touches on a more fundamental problem in the ECtHR’s jurisprudence: its non-ontological character, i.e. its general un-relatedness to the nature of the things it deals with.

    It would be great if someone could dig deeper into this.

  3. Sloet Steenkamp

    “…its non-ontological character, i.e. its general un-relatedness to the nature of the things it deals with” – Dear Jakob, you have hit the nail right on the head! I would say that the root of the problem is twofold, or, more precisely, it exists on two levels. The deepest root of the problem is, of course, the fallacious, non-Aristotelian philosophy that dominates the modern legal thinking. The second problem is the deeply flawed mechanism for the selection of Strasbourg judges. As one of the former judges of the ECHR once pointed out, there are too many university professors among them, and too few real judges, – I mean those who have sat as judges in their respective countries. Even when you read a judge’s separate (concurring/dissenting) opinion, you can often tell from which background he/she comes. A real judge always looks at the case at hand (the reality) and adapts the general rules and principles to this particular reality. Most university scholars do the exact opposite: they come with their preconceived and prefabricated ideas (and ideologies) and then try to push the reality into this Procrustean bed; if it doesn’t fit in, then too bad for the reality! Surely there are exceptions to this rule, but it remains the rule.
    Many will agree that the ECHR needs to be radically sanitised, but no reform will succeed unless more adequate judges are appointed. All other “reforms” currently underway are blatantly inadequate and do not address the core of the problem. As my grandpa used to say, “Moenie krap waar dit nie jeuk nie” (Dont’t scratch where it is not itching).
    Greetings from the rainy Stellenbosch,

  4. Lorand Bartels Lorand Bartels

    Gregor, and fellow travellers, is there any way you can at least try to argue more objectively? You would be more effective if you were able to make your points without resorting to invective. This way you ensure that you preach – almost literally – to the already converted. I just don’t get it. From your point of view. It is also irritating to read from my point of view.

  5. Jakob Cornides Jakob Cornides

    is it asking too much if you could kindly specify where Grégor got it wrong? You may think that there is too much “invective” in his argument (where?) – but on your side there seems to be no argument at all. How is that better?

  6. Lorand Bartels Lorand Bartels

    How about ‘dissolution of family life’ for starters? It’s annoying.

  7. Lorand Bartels Lorand Bartels

    Sorry, ‘dilution’. Same point though.

  8. Sloet Steenkamp

    The academic and scientific quality of Lorand Bartels’ comment is astounding! Ancient, scholastic and modern thinkers from Plato to Jürgen Habermas are red with shame: they could never imagine that it was possible to argue so convincingly (poor chaps).
    Gregor and Jakob, you bite the dust. You’d better give up – but I’m sure you already have given up, convinced by the impeccably logical and crystal clear arguments set forth by Lorand.

  9. Lorand Bartels Lorand Bartels

    Please stick to the point. I was talking about unnecessary invective. I said nothing about the argument nor purported to. Thanks for the sarcasm though. Very droll. Bravo.

  10. Jakob Cornides Jakob Cornides

    Lorand, I note your feelings of annoyance, but this is still not an argument.

    On a more lexicographic note, there is both dissolution and dilution. Dissolution is a social fact (less stable marriages, more break-ups), for which there may be many reasons. “Dilution” means that there is increasing uncertainty around the meaning of the term “family” – or of many other terms.

    The point that Grégor has made is that the ECtHR’s interpretation of the Convention’s words makes their meaning unclear instead of clear. Which is not what good legal interpretation should be doing.

  11. Lorand Bartels Lorand Bartels

    Jakob – I would say that dilution means weakening so i disagree with you. It is more than uncertainty. One could easily have said ‘expanding family life’ to make a different point.

  12. Jakob Cornides Jakob Cornides

    Lorand, for “dilution” use a dictionary. It means as mauch as “watering down”. A term is diluted when its meaning is beecoming unclear.

    Of course sombody else could have written something else. Maybe even something you agree with. But if you think that “expanding” the meaning of a term adds to its clarity, then you would probably also agree that “democracy” is strengthened if we decide that henceforth we consider Russia, China, and North Korea as democracies. (Indeed, that would increase the number of democratic states by three, and the number of people enjoying democratic rule by far more than a billion. So I suppose that would be avery good idea, wouldn’t it?)

  13. Lorand Bartels Lorand Bartels

    Thanks for the advice, Jakob. But I know what the word means. On the other hand, you could be right. Maybe Gregor did mean a legal concept becoming watered down (aka weakened).

  14. Sloet Steenkamp

    Dear Lorand, I totally agree with you: one could easily have said ‘expanding family life’ to make a different point. But Gregor (correct me if I’m wrong) did not want to make a “different point”. He wanted to make exactly the point he wanted to make.
    Actually when you mention “expanding family life”, you show this same fallacious anti-Aristotelian, anti-realist paradigm of reasoning. You imply that the legislator or the judge (domestic or international) has the power to “expand” family life; in other terms, for you, “family life” is what legislators define as such – and nothing else. Your reasoning leads to a de facto deification of the State power, which, like a god, has the right to define reality and set boundaries to any concept (and this is a huge step towards totalitarianism). Gregor’s and Jakob’s point is that this idealist legal positivism is wrong, – and the more so because we are speaking of an international court, bound by the formal limits of its founding treaty.

  15. Lorand Bartels Lorand Bartels

    This has been fun but I’ve said all I can. But I would be interested to know whether Jakob actually agrees with you because what you are saying is pretty much what I was saying. Ie there is an ideological point being made about the meaning of ‘family life’. Of course, Gregor could also illuminate us.

  16. Jakob Cornides Jakob Cornides

    Lorand, you certainly did not say much, except that you’re annoyed, and that somebody else than Grégor might have written something else than what he wrote.

    I therefore do not quite understand what you want me to further comment on. Do you mean to say that you agree that your position implies that “the legislator or the judge (domestic or international) has the power to expand family life”, or that “family life is what legislators define as such – and nothing else”.

    With regard to this, I can only say that I fail to understand what the ECtHR’s methodology really is.

    I certainly would not agree to the affirmation that the Court’s case law is “positivistic”, because that would require it to be informed by the Convention’s wording. (By this I mean: if the makers of the Convention had written “a same-sex couple is a family” (or, to expand the concept even more: “a family is a group of two or more person that believes it is a family”), and the Court loyally applied this definition, then I’d say that what we see is applied legal positivism: a legislator has defined a term in a somewhat arbitrary manner, and the Courts apply that definition without asking whether and how it confirms to reality.

    But that is not what is happening. The definitions that the ECtHR is applying do not exist in the Convention. They are of the Court’s own making. Calling the Court’s approach “positivist” would be a compliment that it does not deserve.

    On the other hand, I also do not think that the Court’s methodology can be said to have a basis in natural law. For that to be true, the Court would have to build a solid and consistent theory to explain what the nature of a family is, and why family must be understood in a given (and not in a different) way. But this is also not the case, as I think Grégor has lucidly shown.

    My impression is that the Court is not that the Court has a positivistic approach, but that it has no methodology at all.

    And this is the point I was making in my first contribution. The issues that Grégor has raised in his post all relate to latter-day culture war issues – which could mean that the Court, while delivering proper legal reasoning in other areas, has a political agenda precisely on those particular issues. But if other concepts than “sex” or “family” were subject to similar “dilution”, then one could conclude that the problem is not the Court’s ideological leanings, but simply its lack of proper methodology.

    This is why I would find it interesting to know whether we are aware of similar “dilution” in other areas.

  17. Dear Jakob

    No, I have really not wanted to say anything about the arguments. My final question was whether you agree with Sloet that Gregor is criticising the Court’s dilution of the meaning of what a ‘family life’ can mean, ie heterosexual nuclear, etc. This is basically what I was saying Gregor was saying, and Sloet seems to agree. But your argument was that actually Gregor was criticising a new ambiguity in the Court’s jurisprudence on ‘family life’, quite aside from any ideological (or philosophical, if you prefer this) understanding of ‘family life’. I was just curious whether I was right in thinking that you and Sloet disagree on what Gregor was saying.

    And I like interpreting texts. The fact that the text for this exegesis happens to be a blog post by Gregor that annoys be (on my interpretation, and Sloet’s, for that matter) is a nice irony.


    ps. Now that I have had another look at the post, I can’t help but note that Gregor also says that ‘This decision marks a new stage in the accelerated dissolution of the legal definition of the family which from a biological and institutional reality has become a concept which is flexible to the point of inconsistency.’ So Gregor thinks that dissolution can apply to legal concepts, not just social facts! But enough already … next time let’s talk about trade law.

  18. Ioanna Pervou

    Dear all, I guess that you miss the forest over there. The case of Vallianatos et al v Greece is extremely important, but not with regards to its merits. The case’s paradox concerns the arguments raised on admissibility by the applicants and the responding state. If we take a close look at the facts, it comes that the ECtHR acts like a court of first instance, as the applicants have not exhausted domestic legal remedies. As a matter of fact they have not recoursed to any judicial authority in Greece, depriving the Greek judiciary of its ability to review the impugned law. As such, it gradually becomes – or tries so – a quasi European Constitutional court, a point on which only judge Pinto focused.
    Moving on to the merits, I personally believe that you misread the dictum in order to make an argument. Vallianatos and others is a mere repetition of the famous Schalk & Kopf case. Applicants did not try to make a claim under article 12 of the ECHR (as in Schalk and Kopf). At that case, the Court had made a clear distinction between family and family life. It proceeded by applying a historical and grammatical interpretation of article 12 and held that it pertains only to heterosexuals. Which is fine, since it held that homosexual couples have a right to family life, as a particular aspect of their individual life. [Gregor, I guess it is perfectly fine in terms of human rights theory to specialize and refer in particular to parts of individuality and individual life], hence there is not a substantive difference between the wording of the ECHR and that of UDHR. In Schalk and Kopf though, the court did not vote in favor of a positive obligation of states-parties to enact legislation for homosexual relationships. This view was only expressed by the dissenting of Judges Rozakis et al. In the present case, Vallianatos et al did not ask the court to diagnose such a positive obligation. To the contrary, applicants noted that Greece is the only state regulating civil unions, which has excluded homosexuals from its regulatory ambit, and thus the law is disciminatory. Needless to mention, that applicants’ cohabitation was not an issue examined by the court. It only mentioned (reiterating previous jurisprudence) that homosexuals have the ability to make stable and committed relationships, just like heterosexuals, and are therefore in a comparable situation.
    Having finished with the basics, marriage and family are long-based sociological institutions. I suppose no one should expect the ECtHR and any other court to define them. Yet, simply because they are institutions, their change is an extremely gradual process (just like that of custom, compared to a convention). On the other hand, since sexual orientation is one of the most fundamental aspects of one’s personality and private life (bear in mind that discrimination in the present case was affirmed on the grounds of sexual orientation and not on that of family life)the right’s subject is consciously (at least for the time being) excluding themselves from entering these institutions.
    Finally, the Goodwin example is not very similar, since this was a case of gender identity and gender expression (that is, another basis for discriminatory treatment). The fact that we are currently referring to all these cases with the broad term LGBTI does not entail the same legal basis.

  19. Thank you, Mr. Puppinick for your interesting post. I do not share fully the main argument, but there are a couple of issues that actually are the ones worth of reflecting later on.

    – I agree with the court’s approach on the concept of family. It will be entering in an epistemic ambivalence to just deny what is going on in the society today and for the law not to assume that. The court, in another hand, has been in a permanent contradiction, especially in the Burden case, which was wrongly decided. As well we can see this in Schalk, when it correctly held that same sex couples constituted a family, but it failed to recognize the right to marry for these couples.

    – More than anything, the point is that the court does not have a methodology at all in its decisions. This is particular relevant not only when it comes to the topic addressed by the post, but also when it comes to certain topics of discrimination and the margin of appreciation, just to mention two examples. The expanding meaning of family is not per se unjustified, the problem is about methodology and the lack of an adequate rights theory. In some topics, the Inter-American human rights court is facing the same problems, but with better luck than the ECtHR.

    – If there is any dilution, actually we might say that the actions of the court is just a reflect of how the social convictions of what is the nature of family and the court is doing nothing more to act accordingly. Whether or not this problem: that’s a different subject and leads us to a different question “How did the court get to that?”.
    – So, at the end, what is the element that will allow us to differentiate the multiple social relationships? If even at some extend relationships such as friendships could be, one way or another considered family.

    Is there any element at all to determine the nature of family? Or a margin of appreciation should be afforded to decide how the legal system would react to the different types of family?. There are many types of family, but can we say they are the same or they have peculiar differences that might survive any claim under art. 14 ECHR or under art. 1 of protocol 12?. For example, we could draw some differences of the concept of family within the art. 8 and within art. 12, but only when it comes to its legal consequences, as long as there are not discriminatory elements present.

    As long as 2 or more individuals get together we could make the argument to consider them a family, but based on what? Maybe closeness?. Only time will reveal the closeness required in order to consider them family or maybe the law or a judge. Closeness implies to live together? Or living together implies closeness?. “Closeness” is per se a subjective element and therefore, an arbitrary one due to its lack of consensus on it, as discretionary children, marriage and sex were as elements to define family in time. Maybe parameters could be designed to help the legal operator to make the proper assessment, but I see very difficult to establish, by law, a particular element that will identify “family” properly and that will be useful in time.

    – Jabok, more than Puppinick, I believe, posed the right questions, among others, “Do we know of other examples? Or are these the only ones? I can’t help it, but I think that, beyond the issues that make the headlines in contemporary culture wars, this contribution touches on a more fundamental problem in the ECtHR’s jurisprudence: its non-ontological character, i.e. its general un-relatedness to the nature of the things it deals with.” Well, that will depend of your definition of “nature” in relation to a particular concept.

    At the end, the problem with international human rights law is that there no rights theory to work on. That is why we still having these problems about how to approach any giving right: (i) from the standpoint of natural law?; (ii) front he stand point of positive law?; etc.
    Maybe there is no methodology within the court’s reasoning, but as well, we might conclude that there is not unified methodology or structure of rights theory to properly rely on and to avoid, as much as we can, these issues. We could say that reforming the way we pick judges may help: it could help. But there is not guarantee at all that a career judge could not incur in the same problems that the court is facing today.

  20. Sloet Steenkamp

    Jakob: ” I certainly would not agree to the affirmation that the Court’s case law is “positivistic”, because that would require it to be informed by the Convention’s wording”. Point well taken: I should have been more precise by explaining what I mean by “positivism”. I fully agree with you that the METHODOLOGY applied by the ECHR is the opposite of Positivism; the latter would mean that the Court would stick to the provisions of the Convention and respect the boundaries set by the sovereign will of the Contracting Parties which have established it. What I meant by the Court’s “positivism” is its approach to human rights as something arbitrarily granted by the State in the manner of a medieval king granting a charter of privileges to his faithful subjects. The same applies to the whole set of concepts found in the Convention: “marriage”, “family”, “private life”, “torture”, “inhuman treatment”, etc.. All these concepts now simply mean what the legislator (if necessary, instructed by the ECHR) has decided them to be – without or almost without any connection with the reality.

  21. Sloet Steenkamp

    Jakob: “which could mean that the Court, while delivering proper legal reasoning in other areas, has a political agenda precisely on those particular issues”. – Well, this is an extremely interesting question! My first impression was that, indeed, there is a political agenda on “those political issues” or, as the French usually call them, “les questions de société”. After all, the Court does a really commendable job on the remaining 99% of cases. However, there are some signs of weakening of the Court’s legal reasoning on other topics as well. Take, for instance, Hirst v. UK (no. 2), or Bayatyan v. Armenia, the latter seeming to be clearly “contra legem”.

  22. Jakob Cornides Jakob Cornides

    One comment regarding Schalk&Kopf, and another regarding Vallianatos.

    Schalk&Kopf: the Court’s statement that a homosexual couple enjoys “family life” was a mere obiter dictum that played no role in the outcome of the decision, and which, it appears, was not even shared by all Members of the Chamber that adopted it. Also, except for changing social acceptance for homosexuality (against which, in fact, there is much opposition in various Convention States), the Chamber has offered virtually no argument for this conclusion. The particular weakness of the Court’s reasoning, however, is that it seems to pretend that “family” has a different meaning in Article 12 than it has in Article 8.

    In Vallianatos, the Court condemns Greece for having created a specific form of civil unions, which are not called “marriage”, but which exclude homosexual couples. The judges appear to find this choice arbitrary – but is it more arbitrary than their own approach? One would suppose that it all depends on what purpose was pursued by the creation of such civil unions. But if the purpose is similar to that of marriage, i.e. to offer a stable environment for the raising of children (which is what the Greek govt. said – see §62), then one fails to see how the exclusion of same-sex couples can be discriminatory in this context more than in the context of marriage. The ECtHR’s decision comes along with an extremely weak argument, as it takes no account of the stated purpose of the law. (I guess that in other countries than Greece there would be opposition against such a law precisely on the grounds that the purpose pursued by it is already fulfilled by the institution of marriage, and that there is no need for a multiplicity of such institutes. But that’s quite a different question…)

    In other words, I think that the Court should have accepted that the purpose of the law was what the Greek govt. said it was – and only then could they have asked the question whether, given this purpose, it was reasonable to exclude same-sex couples. But nowadays it seems that adopting a law that makes a difference between same-sex and different-sex couples is for the honourable judges of the ECtHR what a red cloth is for a wild bull: they don’t reflect, they just start gallopping.

    The question is: if a European State that legislates on matters concerning the family, must “in its choice of means … necessarily take into account developments in society and changes in the perception of social and civil-status issues and relationships, including the fact that there is not just one way or one choice when it comes to leading one’s family or private life” (see the passage quoted by Grégor above), would that principle operate also in the opposite direction? How would the Court react if suddenly States started re-defining marriage and the family according to more traditional concepts? (In fact, this is what some Member States are actually doing – not least as a reaction to ECtHR judgments…)

    But if that principle does not operate both ways, is it then really a principle? And how is it reconcilable with the concept of the universality of human rights (i.e. that human rights are the same always and everywhere).

    Once again, I think, the Court has not offered arguments, but a porridge of words.