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HUMAN RIGHTS BETWEEN LAW AND POLITICS
This book analyses human rights in postnational contexts, and demonstrates,
through the case law of the European Court of Human Rights, that the Margin of
Appreciation doctrine is an essential part of human rights adjudication.
Current approaches have tended to stress the instrumental value of the Margin
of Appreciation, or to give it a complementary role within the principle of pro-
portionality, while others have been wholly critical of it. In contradiction to these
approaches, this volume shows that the doctrine is a genuinely normative princi-
ple capable of balancing conflicting values. It explores to what extent the tension
between human rights and politics, embodied in the doctrine, might be under-
stood as a mutually reinforcing interplay of variables rather than an entrenched
separation. By linking the interpretation of the Margin of Appreciation doctrine
to a broader conception of human rights, understood as complex political and
moral norms, this volume argues that the doctrine can assist in the formulation of
the common good in light of the requirements of the Convention.
Volume 76 in the Series Modern Studies in European Law

Modern Studies in European Law
Recent titles in this series:
Equal Citizenship and Its Limits in EU Law
Päivi Johanna Neuvonen
European Law on Unfair Commercial Practices and Contract Law
Mateja Durovic
The European Union’s External Action in Times of Crisis
Edited by Piet Eeckhout and Manual Lopez-Escudero
The Legitimacy of Family Rights in Strasbourg Case Law:
Living Instrument or Extinguished Sovereignty?
Carmen Draghici
Strengthening the Rule of Law in Europe:
From a Common Concept to Mechanisms of Implementation
Edited by Werner Schroeder
The Pluralist Character of the European Economic Constitution
Clemens Kaupa
Exceptions from EU Free Movement Law
Edited by Panos Koutrakos, Niamh Nic Shuibhne and Phil Syrpis
Reconceptualising European Equality Law: A Comparative Institutional Analysis
Johanna Croon-Gestefeld
Marketing and Advertising Law in a Process of Harmonization
Edited by Ulf Bernitz and Caroline Heide-Jörgensen
The Fundamental Right to Data Protection:
Normative Value in the Context of Counter-Terrorism Surveillance
Maria Tzanou
Republican Europe
Anna Kocharov
Family Reunification in the EU
Chiara Berneri
EU Liability and International Economic Law
Armin Steinbach
The EU and Nanotechnologies: A Critical Analysis
Tanja Ehnert
For the complete list of titles in this series, see
‘Modern Studies in European Law’ link at
www.bloomsburyprofessional.com/uk/series/modern-studies-in-european-law
Human Rights between
Law and Politics
The Margin of Appreciation
in Post-National Contexts
Edited by
Petr Agha
OXFORD AND PORTLAND, OREGON

2017
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ISBN: HB: 978-1-84946-865-7

ePDF: 978-1-50990-281-1
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Names: Agha, Petr, editor.
Title: Human rights between law and politics : the margin of appreciation in post-national
contexts / Edited by Petr Agha.
Description: Portland, Oregon : Hart Publishing, 2017. | Series: Modern studies in european law ;
volume 76 | Includes bibliographical references and index.
Identifiers: LCCN 2017017560 (print) | LCCN 2017022674 (ebook) |
ISBN 9781509902828 (Epub) | ISBN 9781849468657 (hardback : alk. paper)
Subjects: LCSH: Human rights—Europe. | Human rights. | Convention for the Protection
of Human Rights and Fundamental Freedoms (1950 November 5)
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Contents
Introduction��1
Petr Agha
1. Universalism and Relativism in the Protection of Human
Rights in Europe: Politics, Law and Culture��17
Steven Greer
I. Introduction��17
II. The Relative Universality of Human Rights��18
III. Human Rights, Multiculturalism and Minority Rights��21
IV. The Margin of Appreciation Doctrine under the ECHR��27
V. Culture and the Margin of Appreciation��31
VI. Conclusion��34
2. On the Varieties of Universalism in Human Rights Discourse��37
Ben Golder
I. Introduction: Europe, Human Rights and the Universal��37
II. Modernist Universalism and its Critics��41
III. The Limits of Particularism and the Returns
of the Universal��44
IV. Human Rights and Hegemonic Universalism��49
V. Concluding Thoughts��53
3. When Human Rights Clash in ‘the Age of Subsidiarity’: What Role
for the Margin of Appreciation?��55
Stijn Smet
II. Setting the Scene: Preliminary Remarks on the Margin
of Appreciation and Subsidiarity��57
III. The Court, the Margin of Appreciation
and Human Rights Clashes��59
IV. The Court and the ‘Clashing Rights’ Principle��61
A. The ‘Clashing Rights’ Principle is Inconsistent
with its Own Historical Origins��62
B. The ‘Clashing Rights’ Principle Does Not Cohere
with the Court’s Wider Case Law��63
V. A Reinterpreted Role for the Margin of Appreciation
in Human Rights Clashes��65
VI. Conclusion��69
vi Contents
4. The Margin of Appreciation as an Underenforcement Doctrine��71

Dimitrios Tsarapatsanis
II. Underenforcement, Institutional Considerations
and the MoA��74
III. Explaining the Underenforcement of Convention
Rights: Resource-Bounded Enforcement of the ECHR��78
IV. Justifying the Underenforcement of Convention
Rights: Normative Institutional Considerations��84
A. Shared Responsibility��84
B. Subsidiarity��86
C. Legitimacy��87
5. Anything to Appreciate?: A Sociological View of the Margin of Rights
and the Persuasive Force of Their Doctrines��89
Jiří Přibáň
I. Introductory Remarks��89
II. Jurisprudential Triviality of the Margin of Appreciation
Doctrine: General Remarks��90
III. The Council of Europe between the Universality
of Rights and the Particularity of Cultures��92
IV. The Semantics of Rights in Politics, Law and Public Morality:
From Normative Philosophies to the Social Systems
Theory of Rights��93
V. Human Rights, Their Evolution and Paradoxes:
A Sociological Perspective��97
VI. Human Rights as Power Constellations��99
VII. The Force and Limits of Legal Doctrine��101
VIII. Anything But Discretionary Power?��104
IX. From Different Reasons to the Reasonable Differences
in the Margin of Appreciation of Doctrine��106
X. Concluding Remarks: Human Rights, Functional
Differentiation and the Impossibility of Justice��109
6. The Prisoner’s Dilemma: The Margin of Appreciation as
Proportionality or Recognition?��111
Marco Goldoni and Pablo Marshall
II. Two Versions of the Margin of Appreciation��112
III. The European Saga of Prisoners’ Voting Rights��114
A. Preliminaries��114
B. The Hirst Case��115
IV. Framing the Issue: Legal or Political Constitutionalism?��119
Contents vii
V. The MoA and Proportionality Review: Trivialising

the Right to Vote��122
VI. Reasoning on the Right to Vote��126
7. Social Sensitivity, Consensus and the Margin of Appreciation��129
Nicholas Bamforth
I. Approaches to the Margin of Appreciation��130
II. Sexuality and Same-Sex Partnerships��133
III. Morally Contentious Expression��140
IV. Conclusion��144
8. Religious Rights and the Margin of Appreciation��145
Dominic McGoldrick
II. The Place of Religion in the ECHR��146
III. Religion and Human Rights��146
IV. The Jurisprudence of the ECtHR on Religious Rights��149
V. The MoA in Religious Cases��152
A. The Role of Consensus in Determining the MoA��152
B. Critiques of the Application of the MoA in Religious
Rights Cases��154
C. The Wide MoA and the ‘Fair Balance’ in Religion Cases��154
VI. Case Study: Fernandez Martinez v Spain��158
VII. Concluding Comments��166
9. The Paradox of Human Rights and the Role of the European
Court of Human Rights in Keeping it Alive��169
Petr Agha
I. Preliminary Remarks��169
II. Human Rights as a Means, Not as an End��172
III. Human Rights as a Self-authored Normative Framework��176
IV. Conclusions��182
Index��185
viii
Introduction
PETR AGHA
W
HEN WE READ the literature dealing with the jurisprudence of the
European Court of Human Rights (hereinafter ‘Court’ or ‘ECtHR’) and
its practice and argumentation, one particular part of its jurisprudence
seems to stand out—the judge-made interpretive principle, the so-called margin
of appreciation (hereinafter ‘MoA’ or ‘doctrine’). The reader often learns that the
MoA is immensely dangerous for the preservation of human rights (culture) or
that it is an instrument which serves as an apology for yielding universal human
rights to the wishes of governments to limit human rights.1 The abundance of
references to the margin of appreciation in the case law of the Court has received
severe criticism from scholars, and also occasionally from individual judges of
the Court itself. They all seem to arrive at a very similar conclusion—the role
and function of universal human rights framework and that of the Court, to act
as external guardians, is severely hindered by the prevalence of the MoA in the
jurisprudence of the Court.
More specifically, we can identify three broad groups which somehow summa-
rise the many fronts on which the MoA is criticised. First, the margin of appre-
ciation doctrine is often seen as an inconsistent and opaque part of the Court’s
jurisprudence. It is criticised for how it undermines the normative guidance of
substantive rights and how it allows normative ambiguity to enter the decision-
making process of the Court. Such erosion in turn undermines the ability of the
Strasbourg system to safeguard the Convention rights and leads to inconsistent
standards of human rights in the seemingly similar cases. Second, undermining
normative expectation undermines the role and legitimacy of the Court itself. If
the MoA becomes an integral part of the practice of the Court, the Court itself
runs the risk of effectively abdicating its supervisory role. Third, the MoA tends
to infuse the practice of the Court with subjective and relativist standards, which
undermine the very idea behind the Convention and the concept of human rights
in general, that is, universally valid standards.
Judge De Meyer, writing in his dissenting opinion in the Z v Finland case,
famously summarises the common attitude we come across when it comes to the
1 See, eg, CS Feingold, ‘The Doctrine of Margin of Appreciation and the European Convention
on Human Rights’ (1977) 53 Notre Dame Lawyer 90, 95, 106; E Benvenisti, ‘Margin of Appreciation,
Consensus and Universal Standards’ (1998–99) 31 New York University Journal of International Law
and Politics 843; G Letsas, ‘Two Concepts of the Margin of Appreciation’ (2006) 4 Oxford Journal of
Legal Studies 705.
2 Petr Agha
question of the relationship between human rights and the doctrine of the margin
of appreciation, and the role it plays in contemporary human rights adjudication
in Europe: ‘Where human rights are concerned, there is no room for a margin
of appreciation which would enable the States to decide what is acceptable and
what is not.’2 Even more tellingly, he continues: ‘I believe that it is high time for
the Court to banish that concept [of margin of appreciation] from its reasoning.
It has already delayed too long in abandoning this hackneyed phrase and recanting
the relativism it implies.’
The aim of the Council of Europe, at its inception, was to achieve greater unity
between European states in the aftermath of the Second World War and to protect
and promote their common heritage (and to facilitate the socio-economic pro-
gress).3 The political democracies of the Contracting Parties should accordingly
play a significant role in the development of the standards of the European Con-
vention on Human Rights (hereinafter ‘ECHR’ or ‘the Convention’) and should not
just await the Court’s dynamic interpretation. The Preamble does not merely leave
the rights to ‘common understanding and observance’ of human rights, but also to
the ‘effective political democracy’. The domestic authorities can thus be considered
not only empowered, but also obligated to interpret and apply the ECHR in good
faith and in accordance with international standards without taking advantage of
the subsidiary nature of the international review under the ECHR. In this respect,
the Court’s relationship with the Member States is crucial. The Strasbourg system
is on the one hand a judicial framework providing for human rights protection,
but on the other hand is dependent for its realisation on the Contracting States
who work in tandem with the Court.
The MoA was originally applied in the context of derogations, but has now
spread to the interpretation of the scope of obligations under some aspects of
all the substantive articles and to the accessory protection against discrimination
in Article 14.4 The MoA was for the first time introduced and described in the
Belgian Linguistic case, where it recognised the discretion of states alongside the
subsidiarity of its review, observing that ‘it cannot assume the role of the compe-
tent national authorities, for it would thereby lose sight of the subsidiary nature
of the international machinery of collective enforcement established by the Con-
vention’. Above all, the Preamble calls for an ‘effective recognition and observance
of the rights therein declared’ and establishes that the Convention rights are best
preserved by ‘an effective political democracy’. It must be read together with the
general provision of Article 1 ECHR, which states: ‘The High Contracting Parties
shall secure to everyone within their jurisdiction the rights and freedoms defined
in Section I of this Convention.’ At the same time, Article 53 provides that nothing
2 Z v Finland (App No 22009/93) [1997] 25 EHRR 371, dissenting opinion of Judge De Meyer at [9].
3 Statute of the Council of Europe, opened for signature on 5 May 1949, 87 UNTS 103, art 1 (entered
into force 3 August 1949).
4 See O Mjöll Arnardóttir, ‘The Differences that Make a Difference: Recent Developments on
the Discrimination Grounds and the Margin of Appreciation under Article 14 of the ECHR’ (2014)
14 Human Rights Law Review 647.
Introduction 3
in the ECHR shall limit the rights and freedoms otherwise secured under domestic
law. Yet, at the same time Article 53 prevents the Contracting Parties from dimin-
ishing or deviating from higher national and international standards. Since noth-
ing in the ECHR can be invoked to limit the guaranteed rights and freedoms, the
principle of subsidiarity cannot legitimately be invoked to strike a fair balance to
the detriment of individual rights.
Here we see that the Convention clearly sets certain standards that must be
universally observed in all Member States. However, the list of fundamental rights
formulated in the general language of the Convention is very difficult to interpret
into more specific rules and principles suitable to provide solutions in individual
cases. The jurisprudence of the Court acknowledges that: ‘By reason of their direct
and continuous contact with the vital forces of their countries, State authori-
ties are in principle in [a] better position than the international judge to give an
opinion on the exact content of the [Convention] requirements’.5 However, the
acknowledgement of the aforementioned jurisprudential difficulties leave ‘intact
the supervisory function of the European Court’.6 This leaves the Court (or pre-
viously the European Commission on Human Rights)7 in a rather complex role
which calls for both legal and diplomatic skills.
The result is a very measured advance in the first 15 years of the Court’s exist-
ence, where the objective of providing justice to individuals was carefully balanced
‘with both national and geopolitical interests’.8 However, in the mid- to late 1970s,
some of the most decisive developments took place and the foundations of what
is now known as dynamic human rights doctrine were laid down. In a series of
landmark decisions, the ECtHR laid out the fundamentals for the future under-
standing of the Convention and the jurisprudence of the Court. The mechanism
of individual applications gained importance and consequently set the system of
Strasbourg jurisprudence in motion. The mechanism of individual application
clearly broke away from the so-called ‘measured development’ which governed
the activity of the Strasbourg bodies up to the mid-1970s. In Handyside v UK,
we read the following lines: ‘The Court points out that the machinery of protec-
tion established by the Convention is subsidiary to the national systems safeguard-
ing human rights. The Convention leaves to each Contracting State, in the first
place, the task of securing the rights and freedoms it enshrines. The institutions
created by it make their own contribution to this task but they become involved
only through contentious proceedings and once all domestic remedies have been
exhausted.’9
5 Handyside v UK (App No 5493/72) [1976] ECHR 5 (7 December 1976) [48].

6 E Dembour, Who Believes in Human Rights? Reflections on the European Convention (Cambridge,
Cambridge University Press, 2006) 37.
7 For a detailed presentation of the former and current ECHR procedure, see A Mowbray, Cases and
Materials on the European Convention on Human Rights (London, Butterworths, 2001) ch 1.

8 MR Madsen, ‘Legal Diplomacy: Law, Politics and the Genesis of Postwar European Human
Rights’ in S-L Hoffmann (ed), Human Rights in the Twentieth Century: A Critical History (Cambridge,
Cambridge University Press, 2011).
9 Handyside (n 5) [48].
4 Petr Agha
The above quote from the seminal Handyside case succinctly expresses the
ackdrop against which the European human rights system operates. The Con-
b
vention is, on the one hand, quite resolute in demanding that each and every
country respects certain common standards of human rights, but, on the other
hand, the implementation of common standards may be secured in different ways.
The Court in The Sunday Times v UK10 underlined the non-absolute feature of the
discretion used by the Contracting States and the existence of wide and narrow
margins of appreciation. It was soon followed by a series of cases in which the
Court laid out the foundations of the MoA and human rights jurisprudence in
Europe more generally. In Tyrer v UK, the Court held that the ECHR as a ‘living
instrument’ ‘must be interpreted in the light of present-day conditions’. The ‘prac-
tical and effective’ doctrine was in itself of considerable importance to the inter-
pretation of the Convention as it spelled out that the protection of the rights we
find in the Convention was not an abstract exercise.11 In Marckx v Belgium, the
ECtHR confirmed that a dynamic interpretation of the text of the Convention
is necessary to ensure that the protection of human rights in Europe is kept up
to date. Crucial jurisprudential development is also linked to the interpretation
of Article 3, namely the case of Ireland v UK, which stated that neither a national
margin of appreciation nor derogation under Article 15 could justify the practice
of inhuman and degrading treatment.12 In Airey v Ireland, the Court noted that
‘the Convention is intended to guarantee not rights that are theoretical or illusory
but rights that are practical and effective’.
Generally speaking, the doctrine is a form of deference to local preference exer-
cised when determining the normative contents and requirements of the Conven-
tion rights.13 What is commonly referred to as the margin of appreciation doctrine
is in fact a four-step process of evaluation: (i) fact-finding and analysis; (ii) evalu-
ating the scope of rights; (iii) balancing between individual rights and the public
demands; and (iv) balancing between competing rights.14 The ECHR is pluralistic
in the sense that the enforcement system is highly decentralised. The ECHR is
interpreted and applied not only by the Court (Article 19), but also by domestic
authorities (Article 13). The application of the Convention ‘is given both to the
domestic legislator … and to the bodies, judicial amongst others that are called
10 Sunday Times v UK [1979] 2 EHRR 245 [68].

11 ‘The [European Convention on Human Rights] is intended to guarantee not rights that are
theoretical or illusory but rights that are practical and effective.’ Airey v Ireland, 9 October 1979, Series
A no 32, §24.
12 Ireland v UK (App No 5310/71) [1978] ECHR 1 (18 January 1978).
13 See, eg, R Higgins, ‘Derogations under Human Rights Treaties’ (1978) 48 British Yearbook of
International Law 281, 296–315; TA O’Donnell, ‘The Margin of Appreciation Doctrine: Standards in
the Jurisprudence of the European Court of Human Rights’ (1982) 4 Human Rights Quarterly 474, 475,
479–90; LR Helfer, ‘Consensus, Coherence, and the European Convention on Human Rights’ (1993)
25 Cornell International Law Journal 133, 135.
14 P van Dijk, F van Hoof, A van Rijn and L Zwaak (eds), Theory and Practice of the European
Convention on Human Rights (Cambridge, Intersentia, 2006).

Introduction 5
upon to interpret and apply the laws in force’.15 The Convention is a part and parcel
of each national legal order rather than an external framework which is exclusively
applied in a top-down authoritative manner.16 When the Court finds a violation
of a human right, its judgments do not have a traditionally understood direct
top-down effect;17 instead, they are implemented in the domestic milieu by the
domestic authorities and according to local preferences.18 It is the Member States
who are entrusted with the protection of the values laid down by the Convention,
not (primarily) the Court on its own.19 In determining its existence and level of
relevance, the Court mainly looks at the practice of the Contracting Parties.20 The
substantive content of the ECHR is therefore worked out in a process of weighing
and balancing between the different aspects of each and every case.
The concept of universal human rights trumping the world of politics, which
is supervised by powerful courts and individual judges à la Dworkin’s Hercules,
plays an important part in the imagination of many Europeans, who look to the
Court to provide remedies for the violation of their human rights. For many Euro-
peans, this idea represents an attractive response to controversies relating to abor-
tion, gay rights, gender roles or the place of the so-called traditional values in the
contemporary world. The common anticipation is that the Convention lists a cer-
tain number of universally valid human rights and that the Court lays out a more
or less straightforward chain of reasons supporting a clear central claim based
on the Convention rights and the past decisions of the Court in similar cases,
and that it consequently delivers a decision which protects a violated (universal)
human right. Even though it is generally acknowledged that this format is almost
never encountered in its pure form the practice of transnational judicial bodies, it
still remains an ideal against which the performance of the Convention system is
always measured.
The process of the application of human rights standards with universal ambi-
tions in particular circumstances and across no less than 47 national versions
leads to a variety of forms of implementation reflecting the plural nature of the
ECHR universe. This diversity is commonly addressed in terms of the margin of
appreciation doctrine, which sees the Convention rights as conceptualised and
experienced in a variety of different contexts and cultures. The practice of Court
has a long-standing tradition of accepting pluralism and diversity, and it has long
been recognised that the outcomes of a given case may vary according to the cir-
cumstances prevailing in different states. The margin of appreciation was one of
15 ibid 738.
16 ‘The European practice surprises because it interprets the Convention in a way which carries the
provisions of the treaty so deeply into the legal systems of the Member States, favoring a European
standard over diverse national ones.’ C Warbrick, ‘“Federal” Aspects of the European Convention of
Human Rights’ (1989) 10 Michigan Journal of International Law 699.
17 ibid.
18 ECtHR 21 February 1986, Case No 8793/79, James and Others v UK, Series A No 98, para 84.
19 Sunday Times v UK (n 10) [59].
20 Handyside (n 5) [48].
6 Petr Agha
the focal points of the 2012 Brighton Declaration on the Future of the E uropean
Court of Human Rights21 and has since been explicitly incorporated into the
Preamble of the ECHR.22 The concept of the margin of appreciation, which has
been developed in the jurisprudence of the Court, suggests an ambit of discretion
for national authorities in assessing the appropriate standards of the Convention
rights, taking into account particular values and other distinct factors woven into
the fabric of local laws and practice. While the judicial process may result in more
or less specific rules applicable to other cases and other states, the many years of
case law suggest that it is not possible for the Court to arrive at a sufficient preci-
sion which would be binding on 47 states of the ECHR, be generally applicable
and yet provide justice in the concrete circumstances of a given case. The so-called
‘European consensus’ also plays an important role in the MoA jurisprudence and
it is a difficult yardstick to find, and as such is often challenged on the grounds that
human rights should not depend on what has been decided or legislated by the
majority,23 or that it fails the primary mission of the Convention and the Court
to set universal standards and fulfil the role of external guardian, and effectively
prevents it from accomplishing it.24
Some raise the objection that by embracing the principle of MoA in adjudicat-
ing case law, the ECtHR prioritises the interests of politics over human rights.
However, the MoA can be understood as a conceptual alternative to the compar-
atively empty and unhelpful idea of universalism. The MoA allows us to make
sense of a variety of topics we encounter when we explore the pervasive dialectic
between universal human rights norms and legitimate claims to pluralism.
Human rights norms are drafted in a general and ambiguous way, and one
of the Court’s most important functions is therefore to specify the content of
the ECHR by weighing and balancing the counterweighing considerations. The
notion of universal human rights, on its own, even though highly (symbolically)
relevant, fails in itself to provide the actual protection of any human right. Steven
Greer in his chapter debates the relationship between the universality and relativity
of human rights in Europe, and identifies three principal dimensions which help
us to better capture their mutual association. He begins by showing that we are not
in possession of any knock-down arguments which will conclusively settle the dis-
pute between the universality and relativity of human rights, and concludes that
21 Council of Europe, High Level Conference on the Future of the European Court of Human Rights—
Brighton Declaration (2012), paras 11–12, available at www.echr.coe.int/Documents/2012_Brighton_

FinalDeclaration_ENG.pdf.
22 Protocol No 15 amending the Convention on the Protection of Human Rights and Fundamental
Freedoms, 24 June 2013, Article 1: ‘Affirming that the High Contracting Parties, in accordance with
the principle of subsidiarity, have the primary responsibility to secure the rights and freedoms defined
in this Convention and the Protocols thereto, and in doing so they enjoy a margin of appreciation,
subject to the supervisory jurisdiction of the European Court of Human Rights established by this
Convention.’
23 G Letsas, ‘The Truth in Autonomous Concepts: How to Interpret the ECHR’ (2004) 15 European
Journal of International Law 279, 304.

24 Benvenisti (n 1) 852.
Introduction 7
their relationship remains irresolvable. Therefore, according to Greer, it seems that

the most profitable and practical territory lies in the middle ground—that is, in the
acknowledgement that human rights are ‘universal’ in some senses, particularly as
abstract individual entitlements, and ‘relative’ in others, particularly in terms of
the specific implications they have in concrete circumstances at the national level.
The MoA then plays a unique role, not only in managing the uneasy relationship
between universality and relativity but also when thinking about Europe, which
set up continent-wide institutions governed by constitutional pluralism. There
is scope for substantial differences, particularly in the most controversial cases,
regarding what Convention rights mean and how they should apply in different
contexts. In this way, Convention rights are, and should be, both universal and
capable of being interpreted and applied differently in varying national contexts.
The values embodied in the Convention vary from fairly specific and concrete
rules to very vague and indeterminate principles. The application of human rights
requires the balancing of interests and goals in their context. Greer highlights the
integral and essential role that the interpretive principles of proportionality and
subsidiarity can play hand in hand with the MoA. It remains to be asked in what
ways the universals may legitimately apply differently in diverse contexts and which
institutions should be responsible for deciding how and when this should be the
case. The deployment of the variable margin as a means to adjust the intensity of
its review is precisely related to the Court’s need to make a hard choice when grap-
pling with the complexity of the case presented to it. The application of the MoA
is one such technique, ascertaining the means (types, suitability, proportionality
etc) to attain the goals of the Convention in tandem with social objectives in a
particular circumstance. On this understanding, human rights and politics, the
particular and the universal, the national and the supranational, are co-implicated
and relate to each other dynamically. Ben Golder in his chapter addresses one of
the most common critiques of the MoA, which often begins with its characterisa-
tion as a dangerous form of cultural relativism attenuating the universal reach of
human rights law. He shows the importance of pluralising our understandings
of the category of the universal as well as our understanding of it. He argues that
there are many universalisms and that we do not have a single way of compre-
hending the relationship between the particular circumstances of a human rights
case and the realm of the universal. It is therefore only possible if one subscribes
to a certain, closed understanding of the universal that one could assert that the
margin of appreciation doctrine is at odds with universal human rights. Using
the work of Laclau, Golder shows the MoA in a different light—not as a univer-
salist tool designed to permit derogations or deviations from a universal set, but
rather as enabling an ongoing and never-stilled democratic dialogue about what
the universal content of human rights is and what it will become in the future. His
chapter presents the process which the MoA facilitates as a kind of dynamic inter-
action between the particular claims to universality and the universality achieved
once a human rights claim is materialised as the universal-for-the-time-being as
a political process that neither assumes a single direction nor a single meaning to
8 Petr Agha
those Convention rights. Human rights claims emerge in the light of his argument
as a means of political contestation, and human rights law as a legal forum in
which those claims get aired.
Stijn Smet follows up with his chapter, which focuses on the moment when the
dispute does not arise between human rights and politics, but precisely on the
clash between different human rights. This moment represents a very important
instance for any analysis of the Court’s jurisprudence. In cases where the Court
adjudicates disputes between a human right and a public or general interest, the
role played by rights is possibly best perceived as means to counterbalance and to
provide a ‘trump’ or a ‘shield’, thus protecting individuals against their govern-
ments. However, when different human rights clash, neither the trump card argu-
ment nor the counter-majoritarian argument can really be raised. When the Court
deals with human rights clashes, regardless of how it rules, one human right will
win and another will lose. Against this background, Smet shows that there is often
a greater cause to defer to national legislators and courts. He argues for a nuanced
practice in terms of how such clashes should be approached by the Court and
suggests an alternative approach which allows the Court to salvage the substantive
role of the margin of appreciation in relation to human rights clashes. Absent a
specification of institutional considerations, MoA appears to be either a relativist
doctrine or else an outright abdication of judicial responsibility. Both of these
possibilities are justifiably unattractive to those in favour of Convention rights.
However, the suggestion of this chapter is that they are hardly necessary corollaries
of the MoA. In fact, once we unpack the MoA in terms of under-enforcement, it
becomes possible to explain and justify the MoA by appealing to specifically insti-
tutional considerations, without presupposing any kind of relativism. Substantive
considerations on the possible value and importance of strong human rights, the
role of politics, particular considerations or, in other words, about the content of
Convention rights only tell us part of the story of the mechanisms set up by the
Convention.
Equally as important are institutional considerations. In his chapter, Dimitrios
Tsarapatsanis focuses on the considerations that apply to the Court qua decision-
maker by virtue of its particular institutional role in a shared scheme of human
rights governance across the contracting states of the Council of Europe. He pro-
poses to analyse the role of MoA vis-à-vis institutional consideration as an under-
enforcement doctrine. His chapter portrays the MoA as a rational judicial strategy
under conditions of resource-bounded rationality in terms of subsidiarity and
shared responsibility between the Court and states parties in terms of the imple-
mentation of Convention rights.
Steven Greer’s work has introduced a widely accepted distinction between a
strong and a weak sense of the margin of appreciation. As noted by Alexander
Somek, the point of the strong version of the margin of appreciation is to make
the system recognise particularity.25 The application of this version of the MoA is
25 A Somek, The Cosmopolitan Constitution (Oxford, Oxford University Press, 2013) 186.
Introduction 9
a way to recognise the political nature of the states and it is usually associated with
an understanding of the Convention qua international treaty generating obliga-
tions of international law. The Court often employs a weak version of the MoA.
This approach uses the doctrine of the MoA as a way of balancing between the
rights of the individual as established by the Convention and the collective goals,
interests and identities expressed by national authorities. Such an understanding
basically collapses the MoA into a proportionality test, that is, a review of potential
interferences to individual rights that can be justified when they are proved to be
proportional.
While the MoA is often criticised for a lack of conceptual specification and the-
oretical incoherence and is portrayed as a mere exercise of discretionary power,
Jiří Přibáň, instead of criticising the doctrine for compromising the uniformity
of the ECHR, argues that the doctrine’s ability to make the meaning of rights
flexible and variable actually contributes to the preservation of the ECHR’s gen-
eral value and normative force. He characterises the modern political condition
as one where the ethics of virtue is replaced by the morality of norms, including
normative claims formulated through the language of rights. This transformation
into charters and catalogues of rights allows states, international organisations
and supranational political and legal entities, such as the EU and the Council of
Europe, to derive their legitimacy from human rights and not the ultimate ideal
of a just society. Therefore, in the modern social condition, the virtue of justice
has been replaced by the morality of rights. Rights have become new common
goods and the margin of appreciation doctrine should guarantee that they are
justly distributed to all segments of European society, though in the differentiated
manner. In this vein, the MoA appears as an argumentative strategy which allows
for the strengthening of the legitimacy of rights regime as the common normative
ground. It keeps the minimum unity in the argumentatively and institutionally
pluralistic environment and thereby guarantees the stable projection of human
rights norms in its relatively volatile normative environment. The language of
rights as used under the MoA doctrine incorporates the conflict between formal
legality and its ‘informal’ social environment of politics, economics, education,
the mass media etc. Přibáň’s chapter concludes on a cautionary note, whereby he
argues that such a concept of human rights recognises and understands only those
practices of distributive justice operating through the language of human rights
and its specific doctrines, such as the MoA.
Marco Goldoni and Pablo Marshall focus on this particular tendency in the juris-
prudence of the Court. According to them, balancing (and in particular propor-
tionality stricto sensu) has become the dominant technique adopted by national
constitutional courts to solve the conflict between fundamental rights and public
interests. They perceive the prevalence of proportionality in a number of differ-
ent issues to be suspicious. The concern here is that proportionality analysis is
inadequate to adjudicate on certain fundamental rights. In the most straightfor-
ward way, such a limitation is recognised by the Convention itself by positing
that the protection of certain rights is absolute. But this is not the only limit of
10 Petr Agha
roportionality analysis: when conducted in a procedural mood, proportionality

p
analysis circumvents any scrutiny of the substance of a right. And yet it has become
so prevalent in today’s Europe that in the string of cases relating to prisoners’
voting rights, it was adopted not only by the Court, but also by the other institu-
tions involved in those controversies. Proportionality reasoning tends to obscure
the political stakes of deciding around the boundaries of the right to vote, making
the question of the fittest institution for adjudicating these issues redundant and
oblivious to the nature of the right in discussion. The chapter analyses the MoA in
the cases concerning the Prisoner Disenfranchisement saga as a way to highlight a
range of issues surrounding the right to vote and, more specifically, the nature and
scope of this right in the context of contemporary Europe. Goldoni and Marshall
show that the legal and political reasoning adopted in these cases has not only
depoliticised an issue which lies at the core of the political process, but has also
reduced the whole issue of the right to vote to a matter of jurisdictional compe-
tence. The adoption of proportionality analysis therefore warps the institutional
dialogue that the MoA is supposed to enhance.
The MoA is a complex and sophisticated instrument for international bodies
supervising polycentric rights claims. The factors that comprise the MoA may
combine and interact in different ways, sometimes pulling in different directions
in the context of a single case. In his chapter, Nicholas Bamforth argues that it
may be helpful to understand the margin more generally in terms of a combina-
tion of legal, principled and political considerations. The discretion available to
signatory states depends in part on the extent to which there is ‘common ground’,
‘consensus’ or ‘agreement’ at the national level concerning the aim of the restric-
tion under challenge, or according to which the evolution of the margin is related
to the developing legal position in the states. Bamforth follows two sets of ECtHR
decisions involving claims based on ‘qualified’ rights and competing considera-
tions relating to the existence of social sensitivity in the relevant signatory states:
namely, cases concerning minority sexual orientations and same-sex partnerships,
and concerning artistic expression which causes offence to those with particular
religious sentiments. He explores the roles of legal and political factors in relation
to key ECtHR decisions concerning same-sex partnerships and morally conten-
tious expression. In these contexts, political factors cannot provide a complete
explanation of the margin’s operation and thus reference to legal considerations
and sometimes arguments of principle is necessary. The ‘consensus’ approach,
which plays a key role in the relevant case law, is seemingly a political factor, and
the operation of the MoA from case to case appears to involve a policy choice
concerning the respective weight to be granted to Strasbourg-level and national-
level decision-making. However, this does not exhaust the full range of factors
in play in same-sex partnership or morally contentious expression cases. While
the relationship between non-political and political factors is slightly different in
the two groups of cases—most likely as a practical consequence of the issues and
claims involved in each group—both factors have a part to play. Unless one is
convinced that judicial decision-making turns solely on personal preferences and
Introduction 11
that references to texts and precedents are merely a cover for judicial politics, it
therefore seems clear that there is a role for legal factors in all of this.
This complexity and uncertainty may not satisfy jurisprudential purists or
pure universalists, but it represents a sensible pragmatic legal doctrine for a sys-
tem applying to 47 states and over 820 million people. Thus conceived, the MoA
plays a crucial role in building a complex multi-level community amongst the
47 Council of Europe states. The MoA can thus assist in mediating between the
ideas of universal human rights and leaving space for reasonable disagreement,
legitimate differences and national or local cultural diversity. The MoA is a suf-
ficiently sophisticated and flexible instrument of supervision that is sensitive to
special historical or political considerations, the relative importance of the inter-
est at stake, sensitive moral or ethical issues, the balancing of private and public
interests, and complex scientific and technical issues. Assessing all of these kinds
of factors in religion-related cases seems particularly pertinent, as they allow for
acceptable overall balance, which can be achieved in a number of ways. In Dominic
McGoldrick’s chapter, the MoA is presented as a process of reasoning, contesta-
tion and evaluation that is engaged in by democratic parliaments and courts and,
to some extent, the people. McGoldrick highlights the importance of giving sig-
nificant weight to the existence or non-existence of a consensus, as it allows the
ECtHR’s jurisprudence to keep pace with but not to move so far ahead of societal
changes within Europe that it would create a significant risk of rights not being
protected. In determining the MoA, the existence of a consensus is significant
in terms of weighting, but it is not necessarily decisive or determinative, instead
reflecting a stage of development within a particularly dynamic field of law. An
important aspect of looking for a consensus is that the jurisprudence on particular
controversial issues may take a significant amount of time to be established. This
gives states time to reflect on comparative social, economic and scientific develop-
ments both within and across states.
The practice of the MoA demonstrates the relevance of ‘the political’ and
seemingly brings human rights and politics into some form of collaborative engage-
ment. Although the interplay between politics and human rights adjudication has
generally been acknowledged, there has been a tendency to construe human rights
as somehow apart from the political and, moreover, to situate human rights adju-
dication exclusively within the domain of the Court and the language of the law. In
his chapter, Petr Agha presents the MoA both as an integral tool of human rights
discourse and as a site where the endless proliferation of meanings associated with
the idea of human rights meet, become disrupted and gain new forms and new
meanings. Human rights realisation is on his reading only enabled by a continuous
reconstitution of political explanations and of human rights discourse. Human
rights under the MoA help to integrate human rights within the political fabric
of the polis, integrating them into the very functioning of society. His chapter
reconceives human rights as embedded within community and as ‘self-authored’
and emergent through collaborative activities. Resonant with this is the emphasis
he puts on human agency as realised through individual applications, which are
12 Petr Agha
presented as a form of critique that has the capacity to re-establish the productive
tension between human rights and the political life of society. When the individual
application is lodged, it becomes a representative of a larger (political) issue—the
claim is not just the claim of an aggrieved individual, who looks to the Strasbourg
mechanism for protection, but rather couples the protection of individual human
rights with a much broader dimension, that is, with the idea of participation and
recognition within the wider framework of the political community.
While the existence of strong Convention rights with an undisputed claim to
universality may be viewed as an ontological necessity for achieving the goals of
the Convention, it does not necessarily follow that the perceived ontological pri-
macy of human rights should automatically reject the plurality of the world. By
the same token, if a human right would be allowed to trump all other claims, it
would undoubtedly take no notice of the fact that the existence of human rights
and their catalogues are based on decisions which cannot be taken independently
of the consequences of their implementation upon the community. The specific
circumstances of local politics, histories and sentiments are not necessarily in
opposition to individual human rights; rather, they contribute to their definition
(and fulfilment). Although defined on the grounds of a concern for individual
well-being, human rights establish the common good of the whole society.26 We
might think here of struggles over the right to an abortion, political work toward
marriage benefits for same sex couples. In efforts such as these, the focus on indi-
vidual case and negative rights (freedom from) only would leave out the entire
fabric against which such struggles emerge. The idea of human rights of an indi-
vidual as realised qua others (community) thus extends adjudication under the
Convention into more complex arrangements. Thus, the space that seemingly
separates human rights from politics is comparable not to so much to borders, but
rather to passages of interpretation and justification. It merely recognises that the
specification of general principles in concrete political and social situations will
very often require a complex and uncertain balancing of different valuables and
the exercise of difficult choices. The fact that the MoA enhances pluralism in rela-
tion to the interpretation and application of human rights does not automatically
mean that it undermines or even destroys whatever is ‘fundamental’ about human
rights. Human rights are not ‘universal’ in terms of being equally applicable across
the board in every situation—each situation has its own sense of universality and
particularity.27
The functional recognition of indeterminacy allows for the reflection of hetero-
geneity throughout the layers of European society. Particular circumstances are
26 ‘The right's holder's interests are only part of the justifying reason for many rights. The interests
of others matter too. They matter; however, only when they are served by serving the right of respect
for people that deontologists claim to be independent of consequentialist considerations depends, in
fact, on some considerations about values. Holder's interests, only when helping the right-holder is the
proper way to help others.’ J Raz, ‘Rights and Politics’ (1995) 71(1) Indiana Law Journal 89.
27 ‘Can Change Be Thought? A Dialogue with Alain Badiou (with Bruno Bosteels)’ in G Riera (ed),
Alain Badiou: Philosophy and its Conditions (Albany, State University of New York Press, 2005) 252–53.
Introduction 13
not something that needs to be filtered out as an impediment to the true universal
meaning of human rights; on the contrary, it secures the ability of human rights to
bring about fundamental changes in the landscape of European societies by refus-
ing the easy option of interpretation within some pre-given framework and thus
transforms the text of the Convention into a truly living instrument which allows
Europeans to communicate about the conditions of their living together. For these
reasons, decisions about the content of rights cannot be independent of choices
about how we want our society to be. If there really is a universal representational
framework of shared values, then the existence of the Convention already signifies
that human rights are connected across multiple pockets of meanings and cultures
and are already disposed towards a variety of meanings. In order for the Court to
be able to deploy a universal meaning of human rights in the case law, it would
need to strip down a great amount of detail relating to the right and the situation
in which this right emerged and to exclude many of the variables in each given
case. But it is only if we include these variables in the equation that we obtain a
meaningful reading of the Convention rights and not for practical or opportun-
ist reasons, but because such variables are constitutively part of every meaningful
human rights regime.
Once we examine different cases that arrive at the Court, it becomes clear that
the substantive normative content entrenched in human rights norms is quite
complex. Although the rights specified in the Convention are to be understood as
having substantive, deontic content, they are also required for realising the broader
goals of the Convention as well as the principles it enshrines in the broader politi-
cal community of 47 Council of Europe states. The tasks involved are numerous:
keeping open the channels of political change, guaranteeing that individuals’ civil,
membership, legal, political and social rights are respected, scrutinising the con-
stitutional quality and propriety of the reasons justifying governmental action,
and ensuring that the channels of influence from independent, civil society public
spheres remain unobstructed and undistorted by administrative, economic and
social powers.
Articulating such complexity through the medium of human rights of course
inherently reduces the complexity of the case, but at the same time provides us
with a (legal) structure, which we can employ to come together, make decisions
and set the terms of our living together. Using this structure often involves using
the threads and the materials that already exist in a given culture in order to
work out the meaning of a human right in a particular situation. However, this
link between the framework of the Convention and local circumstances lends the
human right in question a different meaning from that often proposed by critics
of the MoA. Applying a human rights framework to a specific context and allow-
ing all the many variables to play a role in the process of adjudication situates it
very differently from the one defined as expressing an objective order of values.
In each case, the equilibrium of the different aspects can be achieved in different
ways, and each interpretation of the scope of a right involves some assessment
of the different, specific aspects of the issue at hand. Therefore, the meaningful
14 Petr Agha
application of a generally formulated human right does not consist in protect-

ing it from the influence of others, but coincides with the ability to effectively
use it in different circumstances. Any implementation of the Convention rights
thus f ollows a vector which is inscribed within the larger framework. The invoca-
tion of the same right by the same groups or individuals can result in different
answers to the same problem at different moments in time. Human rights oper-
ate in a certain context with a certain number of components, which rearrange
themselves in an effort to resolve a certain problem. The framework within which
the Court oscillates is not marked out by the movement from the particular (the
individual case) to the universal (individual rights), but from singular case to
singular case.
As Brice Dickson notes, the Convention is part of a building project, not merely
a fire-fighting operation.28 It is therefore far more accurate and practical to rec-
ognise that human rights arise from a consensus on common values, which arise
from within the very traditions and cultures that gave life and meaning to the
human rights frameworks.29 The specification of the general principles of human
dignity in concrete political and social situations will very often require a com-
plex and uncertain balancing of values and the exercising of difficult choices of
political morality. Human rights are therefore reconstructed as a forum in which
the meaning of political legitimacy is continuously renegotiated rather than being
final expressions of the moral law or the progressive unfolding of universal stand-
ards. This understanding reconnects the idea of human rights to actual (politi-
cal) struggles and social movements in which rights are established, defined and
contested, making it difficult to narrate the story of human rights as one of the
progressive unfolding of universal rights and to frame human rights practice as
non-political. The gesture of the individual application identifies a form of occur-
rence which is not reducible to either a universal value or a particular case at hand.
Instead of closing down imagined conceptions of human rights, we must imagine
the ways in which our concepts of human rights are always already between and
shared. The final figure, according to this paradigm, is not the Court or a member
state that is in violation of a human right, but the individuals who, by claiming
that their rights have been violated, reconstruct both the practice and the idea
of human rights in light of their own experience, all by lodging their individual
application.
While some authors have heavily criticised the MoA as failing the importance
and content of human rights in their role as constitutional principles, in opposi-
tion to those views, this volume proposes to appreciate the practice of the Court,
28 B Dickson, ‘Positive Obligations and the European Court of Human Rights’ (2010) 61 Northern
Ireland Legal Quarterly 203–08.

29 RD Sloane, ‘Outrelativizing Relativism: A Liberal Defense of the Universality of International
Human Rights’ [2001] Vanderbilt Journal of Transnational Law 530, 540.

Introduction 15
as expressed in its use of the MoA doctrine, as a coherent normative project that
is capable of resolving conflicts between fundamental constitutional values. The
Strasbourg system therefore represents a distinct moral and legal system as much
as a certain political experience. The Court is a forum which allows for different
conceptions of individual and collective goods to be discussed in the language of
human rights, particularly in the form of adjudicating conflicts between various
individual and collective rights claims against the existing concepts of the public
good, as well as tensions within the respective rights themselves.
16
1
Universalism and Relativism in the
Protection of Human Rights in Europe:
Politics, Law and Culture
STEVEN GREER1
I. INTRODUCTION
F
OR THE PURPOSES of this chapter, the two key concepts with which
the conference prompting the publication of this volume was principally
concerned2—cultural diversity in Europe and the ‘margin of appreciation’
doctrine—require some initial consideration. Broadly speaking, ‘culture’ refers
to shared habits of living, behaviour, thought, understanding and representation,
including moral, political, social, economic and legal principles, and assumptions,
artistic and architectural styles and traditions, cuisine, and even ways of sitting
and sleeping. ‘Cultural diversity’—a concept found in social science, social and
political philosophy, and everyday politics and social discourse—can be norma-
tive, analytical/descriptive or both. It also connects intimately and directly with
deeper and wider debates about universals and variations in human experience.
The ‘margin of appreciation’, by contrast, is a doctrine found in some branches of
public international law that refers to the room for manoeuvre that treaty bod-
ies, such as the judicial institutions at Strasbourg, are prepared to accord national
authorities in fulfilling their treaty obligations. While in the European context,3
this concerns how much uniformity and diversity there should be between differ-
ent states with respect to human rights, it does not pertain only (or even mainly) to
culture. By further contrast with the concept of cultural relativism, the margin of
appreciation is entirely normative and has no descriptive or analytical dimensions.
1 The author would like to acknowledge his appreciation to Tonia Novitz for helpful comments on
an earlier draft. The usual disclaimers apply.

2 ‘Conference on the Margin of Appreciation and Cultural Diversity in Europe’, Centre for Excel-
lence in Foundations of European Law and Polity at the University of Helsinki and Centre for Law and
Cosmopolitan Values at the University of Antwerp, Helsinki, 7 May 2012.
3 For the present purposes, this largely refers to the Council of Europe mainly because, with 47 of
Europe’s 48 states, it is much more inclusive than the 28-member European Union, which has also only
taken a formal interest in human rights comparatively recently.
18 Steven Greer
With this in mind, this chapter considers, and attempts to make sense of, uni-
versalism and relativism in the protection of human rights in Europe as follows.
To begin with, debates about the universality/relativity of human rights, and about
multiculturalism and human rights, will be reviewed. The margin of appreciation
doctrine in the case law of the Strasbourg institutions, and its relationship with
culture in particular, will then be examined before some conclusions are reached.
Themes weaving in and out of these issues include, first, when and how normative
arrangements differing between states, or between social groups within a given
state, can legitimately be derived from the same human right. In other words, how
and when can a distinction be drawn between a legitimate variation in the applica-
tion of a putatively universal human right and an illegitimate violation? Second,
to what extent is this a matter of principle or pragmatic compromise—or, if a
mixture of both, in what proportions? Third, who has the responsibility for mak-
ing such decisions: national or transnational, judicial or non-judicial institutions?
And, finally, what roles are, and should be, played by politics, law and culture?
II. THE RELATIVE UNIVERSALITY OF HUMAN RIGHTS
In the debate about the universality/relativity of human rights, which has arguably
been rumbling on in various forms for centuries, three principal types of argu-
ment have been deployed on both sides: conceptual (claims about what core terms
and ideas mean), empirical (claims about the way the world is in fact) and norma-
tive (claims about how things ought to be).4 The core of the universalist case is
that human rights are conceptually universal because they derive, by definition,
from our common humanity and are (and should be) independent of whatever
else divides or distinguishes us from each other. A number of observations have
also been made about other alleged empirical universals in the human experience,
including that individual human biology, psychology, basic needs, potential and
the capacity for reason are the same the world over, that reason is the only uni-
versal guide to values capable of transcending specific contexts because the other
alternatives—intuition, sentiment, imagination, empathy, and revelation—are all
highly culture-specific, and that globalisation is producing the world’s first global
value system grounded fundamentally upon individual human rights. From this
4 See, eg, J Donnelly, Universal Human Rights in Theory and Practice (3rd edn, Ithaca, Cornell Uni-
versity Press, 2013) chs 6 and 7; C Walsh, ‘Compliance and Non-compliance with International Human
Rights Standards: Overplaying the Cultural’ (2010) 11 Human Rights Review 45; W Osiatyński, Human
Rights and Their Limits (Cambridge, Cambridge University Press, 2009) ch 4; J Donnelly, ‘Human
Rights: Both Universal and Relative (A Reply to Michael Goodhart)’ (2008) 30 Human Rights Quar-
terly 194; M Goodhart, ‘Neither Relative nor Universal: A Response to Donnelly’ (2008) 30 Human
Rights Quarterly 183; J Donnelly, ‘The Relative Universality of Human Rights’ (2007) 29 Human Rights
Quarterly 281; J Cowan, M-B Dembour and R Wilson (eds), Culture and Rights (Cambridge, Cam-
bridge University Press, 2001); R Wilson (ed), Human Rights, Culture and Context: Anthropological
Perspectives (London, Pluto Press, 1997).
Universalism and Relativism in Human Rights Protection 19
perspective, two prominent contenders for the primordial natural/human right

are the right to life and the right to liberty on the putatively self-evident grounds
that, without life, no other rights are possible, there is no ‘natural’ reason (ignoring
the distortions of culture and prejudice) why any given human being (particularly
a newborn) should have a greater entitlement to survive than any other and that
individual freedom requires no justification, whereas each and every restriction
upon it does.5
In response to the universalist case, the cultural relativist would reply that, as a
matter of fact, all values derive from specific cultures which are, and always have
been, highly diverse across time and space, with most also typically involving the
thorough, systematic and enduring denial of the universal satisfaction of universal
human needs, as, for example, in slave-owning societies. Any value which may
appear to apply to all or at least to more than one culture or value system must
also necessarily be interpreted by each, and this is also likely to result in signifi-
cant differences. Cultural relativists also argue that regarding the individual as the
fundamental unit of moral worth, as universalism does, is itself merely an abstract
product of Western culture extended globally as a result of Western imperialism
and hegemony. In fact, as cultural relativists observe, non-Western cultures typi-
cally emphasise obligations and collective interests rather than individual rights,
with religion also generally requiring or encouraging the surrender of individual-
ity to the ‘divine’ or ‘transcendent’. Since there can be no ‘culture-free’ value sys-
tem, the cultural relativist concludes that communities and cultures are the only
legitimate sources of values. Other normative arguments deployed by cultural
relativists include the following. Equality of respect for the individual requires
equal respect for the cultures which frame the identities that are integral to their
individuality. Identifying equal universal human needs and capacities does not
solve the problem of how burdens and benefits should be distributed, especially in
conditions of scarcity, or what kinds of restriction there should be on the pursuit
of self-interest, questions which throughout human history have been answered
in very different ways. A slave owner, for example, commits no logical error by
acknowledging that both he and his slaves share the same basic human needs,
while insisting that, as master, his shall be satisfied and those of his slaves only to
the extent that he sees fit. Finally, cultural relativists and others claim that indige-
nous cultures need to be protected from the destructive effects of modern Western
neo-liberalism and that this too is a human right.
The following are among several universalist counter-arguments. Conceptually,
the relativity of cultures as the only legitimate source of values is itself, ironically, a
universal claim. The terms ‘culture’ and ‘community’ are at least as much abstrac-
tions as the ‘individual’, with what counts as an authentic culture often unclear and
contested as much by insiders as outsiders. Consider, for example, the rifts between
Sunni and Shia Islam and between the Catholic, Protestant and Orthodox versions
5 See, eg, M MacDonald, ‘Natural Rights’ and HLA Hart, ‘Are There Any Natural Rights?’
in J Waldron (ed), Theories of Rights (Oxford, Oxford University Press, 1984).

20 Steven Greer
of Christianity, and the intense, and often violent, disputes between believers over
which might be said to be the true version of the given faith. Empirically cultures
are not monolithic, impermeable, unchanging and radically distinct, with people
often living in several overlapping and sometimes even conflicting cultures at any
given time. The gay daughter of Pakistani immigrants born in Glasgow could, for
example, be said to inhabit gay, women’s, Sunni Muslim, Urdu-speaking, English-
speaking, Scottish, British, European, Asian and Western cultures simultaneously.
Normatively, tradition and culture are not self-evident justifications for anything
and, as a matter of fact, cultural objections to human rights in the non-Western
world often serve the interests of elites, whose power and wealth have often been
created by modern capitalism and decolonisation, and who co-opt and distort
‘indigenous cultures’ in order to avoid having to share, or be held accountable for,
their privileges. Finally, to respect all cultures equally, as cultural relativism sug-
gests, is self-contradictory because it requires respecting those, such as the Nazis,
whose exponents would cheerfully exterminate many, or even all, of the rest.
With compelling arguments on both sides of the universalist/relativist debate,
most commentators now accept that human rights are universal at the concep-
tual, global and international legal levels, while simultaneously relative in terms
of national, regional and cultural implementation.6 Several other observations
might be added about the relative universality of human rights. First, analogies
can be drawn with other ‘relative universals’ in the human experience. Take death
for example. While we all must die (a universal), this can happen in diverse or rela-
tive ways, including before birth, at a ripe old age, as a result of crime, accident,
ill-health or quirks of physiology, suddenly or slowly, peacefully and painlessly,
or in great anguish and distress. Language is also a relative universal, manifested
not only in all human cultures, but also in some 7,000 highly diverse and mostly
mutually incomprehensible contemporary languages. Admittedly neither death
nor language is the same as a standard or norm, but these examples nevertheless
illustrate that, at least as concepts, ‘universality’ and ‘diversity’ are not inherently
incompatible.
Second, while the global universality/relativity debate is typically conducted in
terms of universality and cultural relativity, human rights are, in fact, relative in
a variety of ways apart from, or in addition to, culture. This is particularly true
in circumstances where they conflict with each other, and with public inter-
ests, in highly homogeneous cultural contexts such as post-Cold War Europe.7
No matter how culturally different European nations may still be from one another,
since the fall of the Berlin Wall, they have increasingly shared, albeit unevenly and
incompletely, a common institutional model based on democracy, human rights,
the rule of law and the regulated market. Many scholars have aptly labelled this
6 Donnelly (2007) (n 4), for example, calls this ‘relatively universality’, while Osiatyński (n 4) 182–86
distinguishes between ‘hard’ and ‘soft’ universalism.

7 See, eg, Osiatyński (n 4); L Zucca, Constitutional Dilemmas: Conflicts of Fundamental Legal Rights
in Europe and the USA (Oxford, Oxford University Press, 2007).

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“Goblin?” I asked quickly; for, you see, he looked so old and ugly that
I thought he must be one of the underground faeries.
“I’m not a goblin,” he replied in an angry, shrill voice, like the wind
whistling through a keyhole. “It is very rude of you to call me a goblin
—a nasty thing who lives under the earth, and only cares for gold
and silver. I’m a faery—a very celebrated faery indeed.”
“But you wear a beard,” I said doubtfully; “faeries don’t wear beards.”
“Not all faeries,” he answered, with dignity, jumping down from his
swaying flower stem; “but I do, because I am the librarian of King
Oberon.”
“Dear me! I did not know he had a library. Do let me see it!”
“You see it now,” said the librarian, waving his hand; “look at all the
books.”
I looked round, but saw nothing except a circle of trees, whose great
boughs, meeting overhead, made a kind of leafy roof, through which
could be seen the faint, rosy flush of the sunset sky. The ground, as I
said before, was covered with daisy-sprinkled turf, and there was a
still pool of shining water in the centre, upon the bosom of which
floated large white lilies.
“I must say I don’t see anything except leaves,” I said, after a pause.
“Well—those are the books.”
“Oh, are they! Well, I know books have leaves, but I didn’t know
leaves were books.”
The faery looked puzzled.
“You must have some faery blood in you,” he said at length, “or you
would never have found your way into this forest; but you don’t seem
to have enough of the elfin nature to see all the wonders of
Faeryland.”
“Oh, do let me see the wonders of Faeryland!” I asked eagerly; “now
that I am here, I want to see everything.”
“No doubt you do,” retorted the faery, with a provoking smile; “but I
don’t know if the King will let you—however, I’ll ask him when he
wakes.”
“Is he asleep?” I said in astonishment; “why, it’s day-time.”
“It’s day-time with you, not with us,” answered the librarian; “the night
is the day of the faeries—and see, there’s the sun rising.”
Looking up through the fretwork of boughs and leaves, I saw the
great silver shield of the moon trembling in the dark blue sky, from
whence all the sunset colours had died away.
“But that’s the moon,” I cried, laughing.
“The moon is our sun, stupid,” he said tartly. “I think the King will be
awake now, so I’ll ask him if you can see the books.”
He vanished,—I don’t know how; for, though I did not take my eyes
off him, he seemed to fade away, and in his place I saw the green
leaves and slender stem of a flower, with the Canterbury bell
nodding on the top.
The only thing I could do was to wait, so I sat down again on the
fallen tree, and amused myself with looking round to see what kind
of creatures lived in Faeryland.
The night was very still,—no sound of cricket or bird, not even the
whisper of the wind, or the splash of water,—all was silent, and the
moon, looking down through the leaves, flooded the glade with a
cold, pale light, turning the still waters of the pool to a silver mirror,
upon which slept the great white lilies.
Suddenly, a bat, whirring through the glade, disappeared in the soft
dusk of the trees, then I heard the distant “Tu whit, tu whoo” of an
owl, which seemed to break the spell of the night, and awaken the
sleeping faeries; for all at once, on every side, I heard a confused
murmur, the glow-worms lighted their glimmering lamps on the soft
mossy banks, and brilliant fireflies flashed like sparkling stars
through the perfumed air.
Then a nightingale began to sing; I could not see the bird, but only
heard the lovely music gushing from amid the dim gloom of the
leaves, filling the whole forest with exquisite strains. I understood the
nightingale’s song just as well as I did that of the cricket, but what it
sang was much more beautiful.
THE NIGHTINGALE’S SONG.
The Day has furled

Her banners red,
And all the world
Lies cold and dead;
All light and gladness fled.
Asleep!—asleep,
In slumber deep,
Are maid and boy;
And grief and joy,
And pleasures—pains
Are bound—fast bound in slumber’s chains.
Ah, slumbers keep
The maid who sighs,
The boy who cries,
The bee that flies,
In charmèd sleep.
See how the moon shines in the sky

Her light so pale,
O’er hill and dale;
O’er dale and hill,
So calm and still,
In splendour flinging;
And Mother Earth,
At her bright birth,
Hears me the night-bird singing.
’Tis I!
Who in the darkness cry;
The nightingale who sings, who sings on high.
I call the elves
To show themselves;
They creep from tree, from grass, from flower;
In forest-bower
At midnight hour,
They dance—they dance,
All night so bright—so light;
While I the woods with song entrance.
Singing—Singing,
My voice is ringing
Thro’ the still leaves,
Till all the dark night heaves
With pain—with pain
Again—oh, sing again;
Bring joy—bring tears,
Till o’er the lawn
The red, red dawn
Appears—appears—appears.
While the nightingale was thus singing in such a capricious manner,

paying no attention to metre or rhyme, the whole glade changed, but
I was so entranced with the bird music, that I did not notice the
transformation until I found myself in a splendid hall with a lofty
ceiling, seated on a couch of green velvet. The trees around were
now tall slender pillars of white marble, and between them hung long
curtains of emerald velvet. The pool was still in the centre, with its
broad white water-lilies asleep on its breast, but it was now encircled
by a rim of white marble, and reflected, not the blue sky, but an
azure ceiling, upon which fantastic patterns in gold reminded me
somewhat of the intricate traceries of the trees. High up in the oval
ceiling, in place of the moon, there hung a large opaque globe, from
whence a soft, cool light radiated through the apartment.
As I was looking at all these beautiful things, I heard a soft laugh,
and, on turning round, saw a man of my own height, dressed in
robes of pale green, with a sweeping white beard, a purple cap on
his head, and a long slender staff in his hands.
“You don’t know me?” he said in a musical voice. “My name is
Phancie, and I am the librarian of the King.”
“Were you the faery?” I asked, looking at him.
“I am always a faery,” he replied, smiling. “You saw me as I generally
appear to mortals; but, as the King has given you permission to learn
some of the secrets of Faeryland, I now appear to you in my real
form.”
“So this is the King’s library?” I said, looking round; “but how did I
come here?—or rather, how did the glade change to the library?”
“The glade has not changed at all,” said Phancie quietly; “it is still
around you, but your eyes have been unsealed, and you now see
beneath the surface.”
“But I don’t understand,” I observed, feeling perplexed.
“It is difficult,” assented Phancie gravely, “but I can show you what I
mean by an illustration. When you see a grub, it only looks to your
eyes an ugly brown thing; but my eyes can see below the outside
skin, to where a beautiful butterfly is lying with folded wings of red
and gold. The glade you saw was, so to speak, the skin of the library.
Now, your sight has been made keen by the command of the King.
You see this splendid room—it is still the glade, and still the room;
only it depends upon your sight being lightened or darkened.”
“It doesn’t look a bit like the glade.”
“You don’t think so, of course,” said Phancie kindly; “but I will explain.
The white pillars are the trunks of the trees; the green curtains
between are the green leaves; the ceiling is the blue sky; the white
globe that gives light is the moon; and the golden fretwork on the
ceiling is the leaves and boughs of the trees shining against the clear
sky.”
“And the books?” I asked quickly.
“Here are the books,” he replied, drawing one of the green curtains a
little on one side, and there I saw rows of volumes in brown covers,
which reminded me somewhat of the tint of the withered leaves.
“You can stay here as long as you like,” said Phancie, dropping the
curtain, “and read all the books.”
“Oh, I can’t stay long enough for that,” I said regretfully. “I would be
missed from my house.”
“No, you would not,” he replied. “Time in Faeryland is different from
time on earth—five minutes with you means five years with us—so if
you stay here thirty years, you will only have been away from earth
half an hour.”
“But I’m afraid”—
“Still unconvinced!” interrupted Phancie, a little sadly, leading me
forward to the pool of water. “You mortals never believe anything but
what you see with your own eyes—look!”
He waved his white wand, and the still surface of the water quivered
as if a breeze had rippled across it; then it became still again, and I
saw my own room, and myself seated asleep in the arm-chair in front
of a dull red fire. I closed my eyes for a moment, and when I looked
again the vision had vanished.
“How is it my body is there and I am here?” I asked, turning to
Phancie.
“What you saw is your earthly body,” he said quietly, “but the form
you now wear is your real body—like the butterfly and the grub of
which I told you. Now, you can look at the books. You will not
remember all you read, because there are some thoughts you may
not carry back to earth; but the King will let you remember seven
stories which you can tell to the children of your world. They will
believe them, but you—ah! you will say they are dreams.”
“Oh no, I won’t,” I said eagerly, “because it would not be true. This is
not a dream.”
“No, it is not a dream,” he said sadly; “but you will think it to be so.”
“Never!”
“Oh yes, you will. Mortals never believe.”
I turned angrily away at this remark, but when I looked again to reply,
Phancie had vanished—faded away like a wreath of snow in the
sunshine, and I was alone in the beautiful room.
Oh, it was truly a famous library, containing the most wonderful
books in the world, but none of which I had seen before, except the
faery tales. In one recess I found the lost six books of Spenser’s
Faerie Queene, the last tales told by Chaucer’s Canterbury Pilgrims,
the end of Coleridge’s Christabel, some forgotten plays of
Shakespeare, and many other books which had been lost on earth,
or which the authors had failed to complete. I learned afterwards that
they finished their earthly works in Faeryland, and that none of the
books they had written during their lives were in the library, but only
those they had not written.
You will not know the names of the books I have mentioned,
because you are not old enough to understand them but when you
grow up, you will, no doubt, read them all—not the faery books, of
course, but all the others which the men I mention have written.
In another recess I found nothing but faery tales—Jack and the
Beanstalk, The White Cat, The Yellow Dwarf, and many others,
which were all marked The Chronicles of Faeryland.
I do not know how long I was in the library, because there was no
day or night, but only the soft glow of the moon-lamp shining through
the room. I read many, many of the books, and they were full of the
most beautiful stories, which all children would love to hear; but, as
Phancie said, I only remember seven, and these seven I will now
relate.
I hope you will like them very much, for they are all true stories in
which the faeries took part, and there is more wisdom in them than
you would think.
The faeries understand them, and so do I, because I have faery
blood in my veins; but many grown-up people who read them will
laugh, and say they are only amusing fables. The wise children,
however, who read carefully and slowly will find out the secrets they
contain, and these secrets are the most beautiful things in the world.
So now I have told you how I was permitted to enter Faeryland, I will
relate the stories I remember which I read in the faery palace, and
the clever child who finds out the real meanings of these stories will
perhaps some day receive an invitation from King Oberon to go to
Faeryland and see all the wonders of his beautiful library.
THE RED ELF
I.
HOW THE RED ELF RAN AWAY FROM FAERYLAND.
FAERYLAND lies between the Kingdom of the Shadows and the

Country of the Giants. If you want to reach it you must sail across the
Sea of Darkness, which rolls everlastingly round these three strange
places, and separates them from our world. Then you journey first
through the Giants’ Country, the inhabitants of which are very like
ourselves, only larger and fiercer, with very little spiritual nature in
their enormous bodies; afterwards you pass into Faeryland, where
the elves are bright, graceful creatures, who possess forms like ours,
and not a little of our nature. Beyond lies the strange Kingdom of
Shadows, where dwell things which have very little in common with
our earth; they are the shadows of the past and the future, of what
has been, and what yet shall be. Mortals have strayed by chance
into the Giants’ Country, and in old stories we are told they have
lived in Faeryland, but no living man or woman has ever seen the
Kingdom of Shadows, nor will they ever see it during life.
Now, the Faeries, being afraid of the Shadows, never enter their
kingdom, but they also never enter the Country of the Giants,
because they despise them very much as being lower than
themselves, much the same as we look down upon the uncivilised
savages of Africa. Oberon, who, as you know, is the King of Faery,
made a law that no elf should ever go into the Giants’ Country, being
afraid lest the faeries should learn things there which would bring evil
on his own land. So when the faeries want to visit our earth, they do
not cross the Giants’ Country, but come in another way which is
known only to themselves. Having thus explained how these three
countries lie, I will now tell you of a naughty elf who, disobeying the
King’s command, lost himself in the Giants’ Country, and of the
difficulty he had in getting back to Faeryland.
The elf’s name was Gillydrop, a beautiful little creature all dressed in
clothes of a pale green tint, which is the favourite colour of the
faeries, as every one knows who has seen them dance in the
moonlight. Now Gillydrop was full of curiosity, which is a very bad
thing, as it leads people into a great deal of trouble, and although he
had never bothered his head about the Giants’ Country before, as
soon as he heard the proclamation of Oberon he immediately
determined to see for himself what the giants were like. Do you not
think this was a very naughty thing for him to do? it certainly was, but
he was punished for his disobedience, as all naughty people are
sooner or later.
He spoke to two or three faeries in order to get them to join him, but
they would not disobey the King’s command, and advised him to
give up his foolish idea.
“The King is very wise,” they said, “and no doubt he has a good
reason for not letting us visit the Giants’ Country, so you ought to do
as he tells you.”
“I don’t care,” replied naughty Gillydrop; “I’m sure there is something
in the Giants’ Country the King does not want us to know, and I am
determined to find out what it is.”
So, in spite of all warnings, he spread his beautiful wings, which
were spotted silver and blue, like a white-clouded sky, and flew away
through the woods. It was night-time, for, of course, that is the
faeries’ day, but the way to Giants’ Country was so long that by the
time he reached the end of the forest, and came to the boundary of
Faeryland, the red dawn was breaking, so he crept into the bosom of
a rose, and, after getting a honey supper from a friendly bumble-bee,
curled himself up to sleep.
All through the long day, while the sun was high in the blue sky, he
slept, lulled by the swaying of the flower, which rocked like a cradle,
and soothed by the whisper of the wind and the buzzing of the bees
as they hummed round his rose-house.
At last the weary, hot day came to an end, the silver moon arose in
the dark blue sky, the wind sighing through the forest made the
delicate leaves tremble with its cool breath, and the elf awoke. He
left the kind rose, which had sheltered him in her golden heart from
the heat of the day, and flew towards the rippling stream which lies
on the confines of Faeryland. Away in the distance, he could hear
the murmuring laughter of the faeries, as they danced to the sound
of elfin music, but he was too anxious to get into the Giants’ Country
to trouble himself about his old friends.
Just as he was about to cross the boundary, the leaves of the Faery
forest sighed out the word “Beware!” but, not heeding the warning,
he flew across the stream, and found himself at last in the terrible
country where dwelt the foolish giants and the evil ogres. As he
alighted upon an enormous daisy, which was as large as a
mushroom, a voice rang out from Faeryland, full and clear, like the
sound of a beautiful bell:
“Never more come back you need,
Till you’ve done some kindly deed.”
And so when Gillydrop looked back, he saw no green banks, no tall

trees, no beautiful flowers, but only a wide grey ocean sleeping in
sullen stillness under the cold light of the moon.
He was now flying over a dreary waste plain, with great circles of
upright stones standing here and there, and a bitter cold wind
blowing shrilly across the flat country towards the sullen grey sea.
Had he not been able to fly, he would never have crossed the plain,
because the grass stood up like mighty spears, and the furze bushes
were like great trees. On every side he saw immense mountains,
blue in the distance, lifting their snowy summits to the clouds, with
great trees at their foot looking like enormous hills of leaves. There
were no birds flying in the cold air, and no animals crawling on the
bleak earth; everything seemed dead and silent, except the wind,
which moaned through the mighty trees like the roaring of oceans.
There are no towns in Giantland, because the giants are not very
fond of one another, and prefer to live by themselves in lonely
castles among the mountains. Gillydrop knew this, but, although he
looked on every side, he could see no sign of any castle, until at last
he suddenly came on one which was quite in ruins, and so tumbled
down that no one could possibly dwell in it. He flew on, feeling rather
afraid, and came to another castle, also in ruins, with a huge white
skeleton lying at the foot of a high tower, which was no doubt the
skeleton of the giant who had lived there.
Then he found a third, a fourth, a fifth castle, all deserted and in
ruins. It seemed as though all the giants were dead, and Gillydrop, in
despair at the sight of such desolation, was about to fly back to
Faeryland, when he suddenly thought of the voice which had said:
“Never more come back you need,
Till you’ve done some kindly deed.”
Poor Gillydrop was now in a dreadful plight, and, folding his weary
wings, he dropped to the ground, where he sat in the hollow of a
buttercup, which was like a large golden basin, and wept bitterly. He
could never return to Faeryland until he had done some kindly deed,
but, as there was no one to whom he could do a good deed, he did
not see how he could perform any, so cried dreadfully at the thought
of living for evermore in the desolate Giants’ Country. So you see
what his disobedience had brought him to, for, instead of dancing
merrily with his friends in the Forest of Faeryland, he was seated, a
poor, lonely little elf, in a dreary, dreary land, with no one to comfort
him.
While he was thus weeping, he heard a sound like distant thunder;
but, as there were no clouds in the sky, he knew it could not be
thunder.
“It must be a giant roaring,” said Gillydrop, drying his eyes with a
cobweb. “I’ll go and ask him where all his friends have gone.”
So he flew away in the direction from whence came the sound, and
speedily arrived at a great grey castle, with many towers and
battlements, perched on the top of a very high hill. At its foot rolled
the Sea of Darkness, and round the tall towers the white mists were
wreathed like floating clouds. There was a wide road winding up the
steep sides of the rock to the castle door, which was as high as a
church; but Gillydrop, having wings, did not use the road, so flew
right into the castle through an open window.
The giant, whose name was Dunderhead, sat at one end of a large
hall, cutting slices of bread from an enormous loaf which lay on the
table in front of him. He looked thin,—very, very thin,—as though he
had not had a good dinner for a long time; and he thumped the table
with the handle of his knife as he sang this song, taking a large bit of
bread between every verse:
THE GIANT’S SONG.
Oh, if my life grows harder,

I’ll wish that I were dead!
There’s nothing in the larder
Except this crust of bread.
With hunger I am starving,

And it would give me joy
If just now I was carving
A little girl or boy.
I’ve drunk up all the coffee,

I’ve eaten all the lamb,
I’ve swallowed all the toffee
And finished all the jam.
I want to get some plum-cake—

I only wish I could;
For if I can’t get some cake
I’ll die for want of food.
Here Dunderhead stopped singing with a roar of pain, for while

cutting himself some more bread, the knife slipped and gashed his
hand in a most terrible manner. A great spout of blood gushed out
like a torrent and settled into a dark red pool on the table, while the
giant, roaring with anger, wrapped up his wounded hand in his
handkerchief, which was as large as a tablecloth.
“What are you crying about, giant?” asked Gillydrop, who had
perched himself on the table, where he sat, looking like a green
beetle.
“I’ve cut my finger,” said the giant in a sulky tone; “you’d cry, too, if
you cut your finger. Don’t call me a giant—my name is Mr.
Dunderhead. What is your name?”
“Gillydrop. I’m a faery.”
“I thought you were a beetle,” said Dunderhead crossly. “What do
you want here?”
“I’ve come to see the giants, Mr. Dunderhead,” replied Gillydrop.
“You won’t see any, then,” said Dunderhead, making a face. “They’re
all dead except me. I’m the last of the giants. You see, we ate up
every boy and girl that lived near us, and all the sheep, and all the
cattle, until there was nothing left to eat; and as none of us could
cross the Sea of Darkness, every one died except me, and I won’t
live long—this loaf is all I’ve got to eat.”
“Perhaps if I do a kindly deed to Dunderhead by getting him a meal,
I’ll be able to go back to Faeryland,” thought Gillydrop, as he listened
to the giant’s story.
“Well, what are you thinking about?” growled Dunderhead, cutting
himself another slice of bread.
“I was thinking how I could get you some food,” replied Gillydrop.
“What! you?” roared the giant; “a little thing like you get me food! Ha,
ha, ha!” and he thumped the table with his great fist.
Now, as he did this, everything on the table jumped up with the
shock, and so did Gillydrop, who had no time to spread his wings
and prevent himself falling; so when he fell he came down splash
into the pool of blood. He gave a cry of terror when he fell in, and
after crawling out with some difficulty, he found his beautiful green
clothes were all red, just as if he had been dipped in red ink.
The rude giant laughed heartily at the poor elf’s plight, but to
Gillydrop it was no laughing matter, for there is nothing the faeries
dislike so much as the colour red.
“Oh dear, dear, dear!” sighed Gillydrop, while the tears ran down his
face; “now I’ll never go back to Faeryland.”
THE RUDE GIANT LAUGHED HEARTILY AT THE
POOR ELF’S PLIGHT
“Why not?” asked Dunderhead, who was still eating.

“Because my clothes are red,” replied the elf ruefully; “no one who
wears red clothes is allowed to live in Faeryland. Cannot I clean my
clothes?”
“No,” answered the giant, taking a bit out of the loaf. “You are dyed
red with my blood, and the only way to get your clothes green again
is to wash them in my tears.”
“Oh, let me do it at once!” cried Gillydrop, jumping up and down with
delight. “Do cry, Mr. Giant, please do.”
“I can’t cry when I’m told to,” growled Dunderhead; “but if you go to
earth and bring me two nice fat children for supper, I’ll weep tears of
joy, and then you can wash in my tears and become a green beetle
again.”
“But how am I to bring the children here?” asked Gillydrop, who
never thought of the poor children being eaten, but only how he
could get his emerald suit once more.
“That’s your business,” growled Dunderhead crossly, for you see he
had eaten all the loaf, and was still hungry. “I’m going to sleep, so if
you want to clean your clothes, bring me the children, and you can
wash in the tears of joy I shed.”
So saying, the giant leaned back in his chair and fell fast asleep,
snoring so loudly that the whole room shook.
Poor Gillydrop, in his red clothes, spread his red wings, and,
alighting on the beach of the Sea of Darkness, he wondered how he
was to cross it, for he knew he was too feeble to fly all the way.
“Oh, I wish I hadn’t been naughty!” he said to himself. “I’ll never see
my dear Faeryland again.”
And he cried red tears, which is a most wonderful thing, even for a
faery to do. It was no use crying, however, for crying helps no one;
so he looked about for a boat to carry him across the Sea of
Darkness, but no boat could he see.
Gillydrop was almost in despair, when suddenly the sun arose in the
east, and a broad shaft of yellow light shot across the Sea of
Darkness like a golden bridge.
On seeing this, the Red Elf clapped his hands with glee, for, being a
faery, he could easily run along a sunbeam; so, without waiting a
moment, he jumped on to the broad golden path, and ran rapidly
across the Sea of Darkness, which heaved in black billows below.
II.
HOW THE ELF BROUGHT THE GIANT’S SUPPER.
As the sun grew stronger, the beam shot farther and farther across
the Sea of Darkness, until it quite bridged it over, and you may be
sure Gillydrop ran as hard as ever he could, so as to reach earth
quickly. It was lucky he did make haste, for, just as he alighted on a
green lawn near a village, the sun hid himself behind a cloud, and of
course the beam vanished.
Having thus arrived, Gillydrop began to look about for two naughty
children to take to the Giants’ Country for Dunderhead’s supper. He
was very tired, both with his journey across the Sea of Darkness,
and with being up all day, which was just the same to him as staying
up all night would be to us. As he was anxious to get back to
Faeryland, there was no time to be lost, so, instead of going to sleep,
he searched all through the village for two naughty children.
Now, in one of the pretty cottages there lived a poor widow, who had
two children called Teddy and Tilly, of whom she was very fond, as
they were all she had in the world to love. I am sorry to say, however,
that Teddy and Tilly were not worthy of their mother’s love, for they
were very naughty indeed, and never so happy as when engaged in
some mischief. Dame Alice, for that was the name of the poor
widow, tried very hard to improve them, but it was really a waste of
time, for the harder she tried the worse they became. They tore their
nice clean clothes, worried the cat, destroyed the flowers, ate up
everything they could lay their hands on, and altogether were a great
trouble to their poor mother, who often wondered why her children
were so much worse than any one else’s. Dame Alice, however, had
still some hope that they would improve, for, having a few friends
among the faeries, she had learned that some day both Teddy and
Tilly would receive a severe lesson, which would make them the best
and most obedient children in the world.
There was a wood, not far from the village, which was said to be
enchanted, and Teddy and Tilly were told never to enter it, but this
command only made them the more anxious to disobey, and they
constantly wandered about the wood, never thinking of the faeries,
nor of anything else, except their own pleasure. On the day Gillydrop
arrived, they had been in the wood all day, gathering nuts and
chasing the squirrels. Now, as it was sundown, they were coming
home to their supper, quarrelling dreadfully all the way, which was
very naughty of them after spending a pleasant day.
Gillydrop heard them calling each other names, so he peeped out
from behind the leaf of a tree, where he was hidden, and, seeing
their cross faces, he immediately guessed that they were two
children who would do capitally for Dunderhead’s supper, so at once
made up his mind how to act.
It was now night, and, as the faeries say, night is caused by the
overflowing of the Sea of Darkness, which rises and rises when the
sun goes down, until it rolls all over the earth, and any one abroad
during the night is in danger of being lost in its black waves. At dawn,
however, the sea subsides, and vanishes altogether when the sun
appears; but when he sets in the west, it rises once more and
spreads over the earth.
Gillydrop had brought with him a withered leaf from the Giants’
Country, which, being enchanted, would expand into a boat, and sail
across the Sea of Darkness to the Giants’ Country, for, having come
from there, it was bound to return to the tree upon which it had
grown.
The Red Elf took this leaf out of his pocket, and immediately it
spread out into a great brown carpet, which he placed under a tree in
the darkest part, and then went away to entice the children on to it.
Teddy and Tilly came through the wood, quarrelling in a noisy
manner, and calling each other ugly names; not a bit afraid of the
dark, although they certainly ought to have been.
“You’re eating all the nuts,” bellowed Teddy.
“Well, I gathered them,” shrieked Tilly.
“No, you didn’t; I got most,” whimpered her brother crossly.
“Oh, you story! You didn’t,” retorted Tilly.
And then they called each other more ugly names, and fought and
scratched until the whole wood resounded with their noise, and the
birds trembled in their nests with fear.
Suddenly, in front of them, they saw a small red ball, glowing like a
scarlet coal, and it kept dancing up and down like a restless will-o’-
the-wisp.
“Oh, Teddy,” cried Tilly, “look at that pretty ball!”
“It’s mine!” roared greedy Teddy, rushing forward. “I’ll have it.”
“You shan’t!” cried Tilly, running after him. “I’ll get it.”
But the red ball—which was none other than Gillydrop—rolled and
rolled in front of the children through the dark wood, and led them
deeper and deeper into the forest, until it bounded right on to a
brown carpet lying under a great tree, where it lay glowing like a red-
hot coal. Teddy and Tilly jumped on to the brown carpet with a
scream of delight, thinking they would now seize the ball, when
suddenly the sides of the brown leaf curled up, and it lengthened out
into a long boat. The darkness under it grew thicker and thicker, the
foliage of the tree above vanished, and the two naughty children
found themselves in a boat, rolling and tossing on the black waves,
with a gloomy, starless sky above them. Away at the end of the boat
sat Gillydrop, who had now unrolled himself, and was guiding the
magic skiff across the Sea of Darkness towards the Country of the
Giants.
“Oh, I want to go home!” cried Tilly, now very frightened.
“And so do I!” roared Teddy, sitting close to her.
As they said this, they both heard a mocking ripple of laughter, and
saw the Red Elf dancing with glee at the end of the boat.
“You’ll never go home again,” he cried mockingly, “because you have
been naughty, and must be punished.”
“I’ll never be naughty again,” sobbed Tilly.
“No more will I,” echoed Teddy; and they both wept bitterly.
“It’s too late now,” said Gillydrop, shaking his head. “Naughty
children always get punished.”
He might have said the same thing about himself; but then he was a
faery, and felt ashamed to tell two human beings that he had been
as naughty as themselves.
Teddy and Tilly cried dreadfully as they thought of their poor mother
waiting for them at home, and of the nice supper of bread and milk
which she had prepared for them; but their tears were all of no avail,
for the magic boat sailed on and on, though how it moved without
sails or oars they could not tell.
At last they saw a faint silver light away in the distance, and a cool
breeze blew steadily against them. The light grew larger and larger
until it spread everywhere, and they saw the shores of the Giants’
Country, with Dunderhead’s great castle hovering above them. The
boat ran right up on to the beach, and then, suddenly turning into a
leaf, contracted to a small size and flew away to another beech, but
this time the beech was a tree.
The Red Elf vanished as soon as the leaf, and Teddy and Tilly,
finding themselves alone in this dreary land, began to cry loudly. It
would have been better for them if they had held their tongues, for
Dunderhead, hearing two children crying, knew at once that the elf
had brought them for his supper, and came down to seize them
before they could get away.
“Ah! this is the supper my friend the elf has brought me,” he roared,
picking up the children. “I’m so pleased! Now I’ll boil them.”
You may be sure that Teddy and Tilly were in a dreadful fright on
hearing this, as they did not want to be boiled; but, in spite of all their
cries, Dunderhead took them up to the great hall of his castle, and
set them down on the table.
They were so fat and juicy that the Giant cried tears of joy at the
prospect of having a good supper, and as his tears gushed out in a
great torrent, Gillydrop, who had been waiting for this, plunged into
the torrent to get his clothes cleaned again. Much to his dismay,

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Human rights between law and politics

the margin of appreciation in post

The Judicial Application Of Human Rights Law National

Indigenous Peoples, Marine Space and Resources, and

Shifting Centres of Gravity in Human Rights Protection

National Constitutions in European and Global

The Idea of International Human Rights Law Steven

Reconciling Law and Morality in Human Rights Discourse:

Recognising Human Rights in Different Cultural

International Human Rights Law Daniel Moeckli

Volume 76 in the Series Modern Studies in European Law

OXFORD AND PORTLAND, OREGON

Hart Publishing Ltd Bloomsbury Publishing Plc

ISBN: HB: 978-1-84946-865-7

4. The Margin of Appreciation as an Underenforcement Doctrine���������������71

V. The MoA and Proportionality Review: Trivialising

5 Handyside v UK (App No 5493/72) [1976] ECHR 5 (7 December 1976) [48].

Materials on the European Convention on Human Rights (London, Butterworths, 2001) ch 1.

10 Sunday Times v UK [1979] 2 EHRR 245 [68].

­Convention on Human Rights (Cambridge, Intersentia, 2006).

Brighton Declaration (2012), paras 11–12, available at www.echr.coe.int/Documents/2012_Brighton_

Journal of International Law 279, 304.

their relationship remains irresolvable. Therefore, according to Greer, it seems that

­ roportionality analysis: when conducted in a procedural mood, proportionality

application of a generally formulated human right does not consist in protect-

Ireland Legal Quarterly 203–08.

Human Rights’ [2001] Vanderbilt Journal of Transnational Law 530, 540.

an earlier draft. The usual disclaimers apply.

II. THE RELATIVE UNIVERSALITY OF HUMAN RIGHTS

perspective, two prominent contenders for the primordial natural/human right

in J Waldron (ed), Theories of Rights (Oxford, Oxford University Press, 1984).

distinguishes between ‘hard’ and ‘soft’ universalism.

in Europe and the USA (Oxford, Oxford University Press, 2007).

THE NIGHTINGALE’S SONG.

The Day has furled

See how the moon shines in the sky

While the nightingale was thus singing in such a capricious manner,

HOW THE RED ELF RAN AWAY FROM FAERYLAND.

FAERYLAND lies between the Kingdom of the Shadows and the

And so when Gillydrop looked back, he saw no green banks, no tall

THE GIANT’S SONG.

Oh, if my life grows harder,

With hunger I am starving,

I’ve drunk up all the coffee,

I want to get some plum-cake—

Here Dunderhead stopped singing with a roar of pain, for while

“Why not?” asked Dunderhead, who was still eating.

HOW THE ELF BROUGHT THE GIANT’S SUPPER.

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Convention on Human Rights (Cambridge, Intersentia, 2006).

roportionality analysis: when conducted in a procedural mood, proportionality