Margin of Appreciation - LAW A2 Watch

rkuni16
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I don't know how to put it into my law and morality essay!
I don't understand what they do.
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GeneralStudent95
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What do you mean you do not understand what "they do" — are you referring to the margin of appreciation doctrine? There is a single margin of appreciation doctrine which is deployed by the European Court of Human Rights. In domestic law the correct phrase is discretionary area of judgement. So, I am confused when you speak about "they" because you are implying there is more than one doctrine.

You would need to give us some sort of an idea of what exactly the essay is asking so that we can decipher how the margin of appreciation doctrine is relevant to the essay?
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rkuni16
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(Original post by GeneralStudent95)
What do you mean you do not understand what "they do" — are you referring to the margin of appreciation doctrine? There is a single margin of appreciation doctrine which is deployed by the European Court of Human Rights. In domestic law the correct phrase is discretionary area of judgement. So, I am confused when you speak about "they" because you are implying there is more than one doctrine.

You would need to give us some sort of an idea of what exactly the essay is asking so that we can decipher how the margin of appreciation doctrine is relevant to the essay?
The question to my essay is '
Discuss the Relationship between Law and Morals and Assess whether the Law Ought to Uphold Moral Values'

Yes the margin of appreciation doctrine is what I have to include as a paragraph in my law and morality essay but I am unsure about how it links in. I also have to use the case of
Strasbourg v Germany and include theorists Hart & Devlin.
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GeneralStudent95
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(Original post by rkuni16)
The question to my essay is '
Discuss the Relationship between Law and Morals and Assess whether the Law Ought to Uphold Moral Values'

Yes the margin of appreciation doctrine is what I have to include as a paragraph in my law and morality essay but I am unsure about how it links in. I also have to use the case of
Strasbourg v Germany and include theorists Hart & Devlin.
Essentially, the margin of appreciation doctrine is a recognition of the limits of the ECHR in two key respects: (a) it is a recognition that an international court is, when dealing with certain topics, not in the best position to rule on them. In principle, national authorities are better in some instances to decide on certain matters because they are closer to the ground, so to speak; (b) it is a recognition that certain matters which the court is asked to rule upon are inherently subjective and subject to reasonable disagreement amongst contracting states. With these limits recognised, the doctrine is applied in order to give the contracting state a margin within which their decision is permitted to fall. There is no single correct answer, instead, it will be sufficient if the measures which the state had in place fall within the margin which the court has permitted.

An example is best: this is broadly taken from Wingrove v UK. When the court is dealing with the question of whether banning an erotic movie which debases a religious figure is "necessary in a democratic society" for the "protection of morals" the court recognises — in line with what I said above — that (a) it is not in the best position to judge whether it was necessary for the UK to ban the film on the basis of morality, because the UK Government is in a better position to judge the moral sensitivity of its own country; and further (b) there is a recognition that morality on matters of blasphemy laws and religious erotic films is a subjective concept, which is not capable of being applied universally across the contracting states. Hence, a margin is given to the UK within which they may decide these matters themselves, subject to the supervision of the court.

Why this is relevant to morality should be very clear from what I have said above.
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