Interests, identities and European legal orders

Courts and tribunals in the European system are asked to adjudicate among an increasingly complex division of interests and identities.  Stakeholders to any given controversy before European courts and tribunals include sub-national and super-national entities: in addition to constituent states, other parties vying for recognition of legally protected interests include non-governmental organizations, discrete population groups, private entities, and individuals, as well as the European Union and greater European community as a whole. This paper compares the approaches to this complexity taken by the CJEU and ECHR: as a result of the merging of legal regimes in Europe, each of these courts is required to address inter-related identities and interests, yet each adopts different strategies and techniques. The paper will consider the nature of claims to legally protected interests under the two regimes, as well as observable trends, such as perceived centralization or its failure, in the resolution of conflicts among them. The paper argues that the ECJ has increasingly relied on a logic of rationality and reasonableness, but this logic tends to suppress underlying political tensions, rather than resolve them.  The ECHR, by contrast, relies on a rights-based language that tends to constrain dynamic norm development.  Each approach involves trade-offs between efficient adjudication of the case and broader political considerations.