Comparative Law at the European Court of Human Rights: The Quest for “Consensus” in the Advisory Opinion Mechanism

While it is undeniable that Protocol n° 16 may strengthen the interaction between the European Court of Human Rights and national authorities, it is still questionable if the recourse to the comparative method will play a different role in the new advisory mechanism. This paper aims at verifying whether a more abstract approach – and less linked to a specific case – can modify the dynamics in the use of legal comparison and may help to overcome the several criticisms that have emerged so far. The paper is divided into three main parts. The first part concerns the ECtHR’s recourse to the comparative law method and its connection to the doctrines of European consensus and the margin of appreciation. In the second part of the paper, some possible contradictions in the use of these two doctrines are addressed, with particular reference to the area of family relationships. The third part discusses the use of legal comparison in the context of the advisory opinions, exploring the problematic aspects in the application of the comparative method in terms of consistency and transparency.