One, None and One Hundred Thousand Margins of Appreciations: The Lautsi Case

Abstract

The second decision of the European Court of Human Rights in the Lautsi case on crucifixes in Italian state-school classrooms is almost entirely grounded on the margin of appreciation doctrine. This article describes the doctrine as developed by the European Court of Human Rights and, on the basis of the distinction between 'hard cases' and 'easy cases', attempts to show one counter-intuitive consequence of the doctrine. Taken seriously, the doctrine seems to imply that the European Court of Human Rights is the exemplar of a court that enjoys no discretion. This construction cannot be accepted. Two other reconstructions are more plausible: the margin of appreciation can be considered as a canon of interpretation or, alternatively, as a proportion- ality test. The present article argues that both reconstructions entail certain normative consequences for the way in which the European Court should have reasoned in the Lautsi case.