| dc.description.abstract | Rights are typically viewed as embodying interests that are natural, universal or human. This universalizing and objectifying tendency of rights is fundamentally disrupted by the advent of identity in legal discourse, with its emphasis on what is particular about individuals and groups. The aim of this thesis is to find out what identity means for the leading European human rights court, the European Court of Human Rights. In the first part of the thesis, I present a legal analysis of identity by analyzing all rulings mentioning the term ‘identity’. Based on a new, systematic and empirically replicable analysis (n=3,362), I demonstrate that the Court’s notion of identity is replete with internal contradictions. Yet, the analysis also shows the potential of the Court’s notion of identity as a key concept to express a fuller, more complex, and more humane portrayal of the human subject in human rights adjudication. The Court’s frequent use of emotions across different identity categories embodies this potential. Most notably in judgments on sexual, familial, and ethnic identity, the Court draws on emotions ranging from a sense of self-confidence to feelings of humiliation and vulnerability to express how the misrecognition of a person’s identity might affect their lives. Such judgments show the Court in an exceptionally sensitive light, perceptive to the way identity and the individual’s feelings are connected, and how these are impacted by the state. On the other hand, the Court is reluctant to expand on emotional implications for other categories. This gap is most evident in judgments on reputation, citizenship, profession, parents in family cases and religious identity. Hence, the relation between identity and emotions in the case law is imprecise, which constitutes a problem for both legal certainty and substantive justice. In the second part of this thesis, I reflect on this dilemma by reviewing the social theories of Charles Taylor and Axel Honneth as well as the psychological literature on identity and emotions. I argue that the European Court of Human Rights has a complex, multifarious conception of identity, one that challenges established social theories on recognition, but also one that demonstrates flaws and inconsistencies, which can be better informed and systematized by drawing from contemporary psychological findings on identity. | en |
