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The Application of the Margin of Appreciation Doctrine in Freedom of Expression and Public Morality Cases

Year: 2007
Type: article
Abstract: “Margin of appreciation” refers to the power of a Contracting State in assessing the factual circumstances, and in applying the provisions envisaged in international human rights instruments. Margin of appreciation is based on the notion that each society is entitled to certain latitude in balancing individual rights and national interests, as well as in resolving conflicts that emerge as a result of diverse moral convictions. In this regard, the doctrine is analogous to the concept of judicial discretion, where a judge, in line with certain constraints prescribed by legislation, precedent or custom, could decide a case within a range of possible solutions. The role of discretion is indispensable not only for bridging the gap between the law and changing realities of dynamic social organisms, but also for answering the particular questions of a given case in the absence of overall enacted or case law. In other words, judges are entitled to exercise discretion to make fair decisions in a specific case, without being locked into a formula that might not be applicable to every scenario.
DOI: 10.1017/s2071832200005885
Language: English
Subfield: Law
Open Access status: bronze
OpenAlex ID: W32576115
FWCI: 21.32
Cites: 16
Cited by: 43
Related to: 10