Towards a general typology of consensus analysis : from entrenching divergence to constituting convergence

Abstract

Consensus analysis is a method of interpretation and an argumentative practice employed by some of the highest courts in multilevel legal systems, ranging from national federations to systems with origins in international law. In its most basic and most prevalent form, consensus analysis is used by courts when they interpret a legal norm of a higher-level legal order based on how this norm had been interpreted and implemented in lower-level legal orders – the constituent states. Though there is abundant literature on the applications of consensus analysis within specific jurisdictions, few, if any at all, have attempted to transcend the dependence of their analyses on a specific systemic context and to examine consensus analysis as a practice in the abstract. This chapter aims to begin to fill this gap. It analyses consensus analysis as used by the United States Supreme Court, the Court of Justice of the European Union, and the European Court of Human Rights to inductively devise a general typology of consensus analysis as used across different courts and institutional contexts. Establishing this typology is instrumental to our understanding that consensus may serve either as a converging or diverging mechanism for resolving conflicts in multilevel legal orders. Which of the two functions it serves will depend on what type of consensus is used by a specific court in an individual case.