Professor Kai Moller

This course is available on the BA in Anthropology and Law and LLB in Laws. This course is available with permission as an outside option to students on other programmes where regulations permit and to General Course students.

The course starts with an introduction to the European Convention on Human Rights and the doctrinal framework that the European Court of Human Rights has developed (in particular: proportionality; the margin of appreciation; the living instrument doctrine; the emerging consensus doctrine; negative and positive obligations). This will be followed by five weeks in which we will study the Court’s jurisprudence on a number of important human rights, including freedom of expression, freedom of religion, freedom of association and the right to vote, freedom from torture and inhuman or degrading treatment or punishment, and the right to respect for private and family life. The course will place special emphasis on understanding and analysing the human rights implications of morally and politically sensitive and controversial issues, such as questions relating to the protection of hate speech, the relevance of offence to religious feelings, the protection of religious symbols and religious dress such as Christian crosses and Islamic burqas, the protection of sexual practices such as sado-masochism and incest, the human rights status of same-sex relationships, and the question of the applicability of the right to freedom from torture and inhuman or degrading treatment in the context of extradition and deportation. The goal of this part of the course is to enable the students to develop subtle, sophisticated, and balanced arguments about controversial human rights issues. The final part of the course introduces the students to the theory of human rights adjudication, including Robert Alexy’s theory of rights as principles and optimisation requirements, Mattias Kumm’s theory of rights adjudication as Socratic contestation, Ronald Dworkin’s theory of rights as trumps, and the culture of justification.

Syllabus:

The European Convention on Human Rights and the European Court of Human Rights; proportionality, the margin of appreciation, the living instrument doctrine, emerging consensus, negative and positive obligations. Freedom from torture and inhuman or degrading treatment or punishment; freedom of expression; freedom of association and ‘militant democracy’; freedom of religion; the right to respect for private and family life. Theories of proportionality-based rights adjudication: Robert Alexy’s theory of rights as principles; Mattias Kumm’s theory of rights adjudication as Socratic contestation; Ronald Dworkin’s theory of rights as trumps; the culture of justification and the right to justification. 

This course is delivered in Autumn Term and through a combination of 2 hours of lectures and a 1 hour class per teaching week. This course includes a reading week in Week 6 of Autumn Term. There will be a revision class in Spring Term.

Students will be expected to produce one formative essay.

For the European Convention on Human Rights, interested students may want to take a look at

• Harris, O’Boyle and Warbrick, Law of the European Convention on Human Rights 5th edn (OUP, 2023).

For the more theoretical aspects of the course, see

• Kai Möller’s The Global Model of Constitutional Rights (OUP, 2015).

Exam (100%, duration: 2 hours and 30 minutes) in the spring exam period.