Neoliberal rationality and the rhetoric of sacrifice in the construction of proportionality discourse: a case-study from the European Court of Human Rights

ABSTRACT

Applying a critical rhetorical approach to law, this article revisits the proportionality discourse of the European Court of Human Rights and the socio-political tendencies it reveals in the case of Garib v the Netherlands (2017). The work focuses on the rhetorical management of the conflict between socio-economic public policies and the social rights indirectly protected under the European Convention on Human Rights and its Protocols. The rhetorical construction of proportionality discourse identified is driven by the re-elaboration of themes constitutive of the normative rationality of post-austerity neoliberalism, in particular the individual responsibilisation and sacrifice for the negative consequences of neoliberal socioeconomic policies. The discourse is also supported by elements announcing an authoritarian turn in the deployment of such policies through the connection between economic goals and public order.

KEYWORDS:

• Proportionality
• social rights
• neoliberal rationality
• legal rhetoric
• European Court of Human Rights

1. Introduction

This article analyses the rhetorical construction of the European Court of Human Rights’ (ECtHR or the Court) proportionality discourse in the case of Garib v the Netherlands.¹ It argues that the discourse studied conveys and is driven by a neoliberal normative rationality, especially expressed in its reworking of later forms of entrepreneurial reason in public affairs and the rhetoric of individual responsibilisation and sacrifice for the negative consequences of neoliberal policies. Tracking the use of devices like rhetorical comparison, dissociation, metaphor, metonymy or silence, this article reveals a complex emotional language that supplements appeals to logic through which neoliberal discourse is re-elaborated in the language of human rights and, thus, ethically and politically validated.

The central purpose of this analysis is to contribute to a deeper understanding of the judicial construction of neoliberal discourses in Europe by pinpointing its main rhetorical traits in one particular instance and exposing its design in order to assist in the identification of such discourses in other cases – and, perhaps, pave the way for more rhetorically effective counter-discourses. The case selected is singularly well-suited for this purpose. Neoliberal discourses usually appear indirectly in the ECtHR’s case-law, especially through the apparently erratic modulation of states’ margin of appreciation and the Court’s ethos of self-imposed deference.² Although these devices are also present in Garib v the Netherlands, the case develops themes central to neoliberal rationality in the Court’s own voice, which makes the case particularly interesting in a broader analytical context.

This work also helps fill a gap in the extensive body of critical literature on the Garib case where a comprehensive structured rhetorical analysis is generally missing.³ In this vein, it is important to make clear from the outset that this work is based on an interpretivist approach to knowledge that rejects not only views derived from traditional legal positivism, but also other scientistic or naturalistic approaches to the social sciences and the legal research inspired by them.⁴ That is, this piece does not aim at mimicking the natural sciences by looking for statistically representative samples that could help establish causal laws and generalisations about the Court’s behaviour that would predict future decisions and could be tested against new data.⁵

From an epistemologically interpretivist perspective, such endeavour is pointless due to the flaws of scientistic approaches which are best illustrated by their inability to predict human behaviour based on their generalisations.⁶ Instead, this piece aims to highlight a particular legal discourse that exists alongside other discourses in the case-law of the Court and make that discourse intelligible by connecting it to a broader system of beliefs and ideas about human life and society that are revealed by the rhetorical construction of the text.⁷ By studying the meaning of legal doctrine and making such meaning explicit, critical interpretivist work hopes to support reflection and a change of consciousness that may transform social action.⁸

In other words, the article does not aim at describing any ECtHR’s pervasive judicial policies or doctrinal trends with a view to predicting future developments in the Court’s case-law – and, thus, should not be read in this way. Rather, this work explains how neoliberal discourses have been transported into the Court’s legal discourse in this particular instance with a view to mapping the rhetorical inlets through which the former flow into the latter. The goal is to showcase this rhetorical construction in the hope that perhaps understanding it better will help act upon it – or at least be aware of it – if and when it occurs again.

In developing its argument, the article looks into one of the most crucial points in the ECtHR’s argumentation structure: proportionality discourse. Having become the core of current European judicial rights reasoning, proportionality can be understood as an adaptable template of legal argumentation that aspires to remedy the issue of legal indeterminacy – the so-called hard cases, in particular – through the persuasiveness of its transparency and systematicity.⁹ Taken in the context of normative conflicts involving fundamental rights, proportionality discourse comprises a two-step process that first verifies the prima facie infringement of a given right and then reconstructs the possible justification of that restriction through a test that discusses three points. First, the adequacy or means-ends suitability of the restrictive measures evaluated; second, the necessity or availability of less-restrictive measures to promote the competing interests; and finally, the stricto sensu proportionality evaluation, where the costs for victims and the benefits for public interest are compared to each other to see if the latter are weightier than the former in relative terms.¹⁰

The doctrine, however, falls short of the promises of transparency and arithmetically produced rationality that its commentators suggest.¹¹ Although the Court itself does not subscribe to any scholarly theory and does not openly follow an arithmetical construction of proportionality reasoning in its practice, the basic logical structure of proportionality balancing is always predicated upon quantitative reasoning, even when it is not expressed in numerical (cardinal or ordinal) values.¹² Thus, given the widely acknowledged implausibility of the arithmetical measurement (ratio) of both the cost of violating one value and the importance of the interests pursued by such violation, the rationality of comparing competing values is in question;¹³ and the process of comparing or balancing falls back on unexamined value preferences.¹⁴ As a result, proportionality reasoning can also be approached as a rhetorical device whose persuasiveness lies beyond its rational stringency and requires the exploration of underlying value programmes through rhetorical analysis.¹⁵

In this vein, although previous legal literature on the case of Garib v the Netherlands has critically dealt with the way the ECtHR develops its proportionality argumentation, this part of academic commentary, which is more immediately relevant for this work, has generally focused on the shortcomings of the Court’s test of proportionality in concreto (i.e. the stricto sensu proportionality evaluation as to ‘The applicant’s individual case’ in the ECtHR’s language, para. 158 et seq. of the Judgment) and tried to identify possible ways of improving the Court’s application of this test in order to take intersectionality aspects into account.¹⁶ Such literature, however, does not delve into the connections of the Court’s argumentation with broader systems of meaning and how these systems decisively influence the criticised construction of the Court’s proportionality review.

In contrast, the rhetorical analysis undertaken here links with studies describing the emergence of a global neoliberal legality, whose defining features include the rise of judicial power and the strategic mobilisation of indeterminacy.¹⁷ The results of this analysis are read against a broader normative context that has been usefully explained in terms of a neoliberal rationality, i.e. a ‘normative reason from which governing is forged’, which is different from and yet intertwined with the (legal) discourses through which it operates.¹⁸ This approach pays attention to both the broader principles and values that confer a modicum of stability and readability onto a neoliberal governmental common sense (especially the centrality of market competition dogmas, individual responsibilisation, and economic financialization) and a rapidly changing landscape of disciplinary apparatuses and policies meant to adapt the former to diverse local circumstances across the world.¹⁹ As the analysis aims to comprehend the reciprocal influence between legal justification discourses and dominant forms of governmental normative rationality (normative rationality limits and controls legal discourses, while legal discourses re-elaborate and re-create normative rationality),²⁰ it skips the trap of closed conceptual definitions and helps capture neoliberal global and local manifestations as a permanent socio-regulatory transformation process,²¹ which is particularly well-suited to the study of transformations affecting social rights and egalitarian approaches to human rights under dominant forms of political economic reason.²²

The study begins by briefly presenting its rhetorical analytical approach in section 2. This is then applied to the Garib case in section 3, followed by a short reflection on the features of the proportionality discourse analysed in section 4. In section 5, the article delves into the main traits of the normative rationality that informs the discourse sampled and its connections to the broader elements of neoliberal governmental rationality.

2. Law as discourse and the rhetorical analysis of law

Drawing on early twentieth century linguistic philosophy and connected to the problem of legal indeterminacy, post-realist critical scholarship has long established how legal materials fail per se to determine legal decision-making.²³ If legal decisions are not determined by legal texts, then the actual stability of meaning and the relative predictability of legal decision-making must be traced to the collective values of interpretive communities of law-appliers.²⁴ This denies not only the false necessity of legal reasoning propounded by traditional jurisprudence, but also the false contingency of that reasoning and its outcomes.²⁵ Thus, critical jurisprudence looks at law as a type of discourse produced by specific communities and tries to understand ‘the preconstruction and production of legal meaning’ through its regularities and patterns.²⁶

In this vein, legal discourse is understood as a practice of persuasion, a rhetorical activity that can be analysed through the lens of the classical modes of persuasion, i.e. appeals to reason (logos), authority (ethos) and emotion (pathos).²⁷ Following von Schlieffen/Sobota as to the translation of these categories into legal language, logos arises as propositions or claims that ‘hint to a reason’, be this through deductive language or inductive arguments – typical logos arguments include codification, principles, common sense and conclusions.²⁸ Ethos appears in legal language as stylistic references to professional or institutional traditions and cultures as well as images of the authority they are expected to carry with the audience – text, sources and other forms of authority argument are characteristic of ethos.²⁹ Finally, pathos emerges as signal words, references to especially emotional topoi or through a variety of rhetorical figures that are designed to arouse certain feelings in the audience (sympathy, pity, fear, disgust, fairness, trust, scepticism, etc.).³⁰

Although these three modes of persuasion are presented separately to stress the nature and purpose of the different sorts of appeals that they introduce in legal discourse, in practice ethos and pathos appear transported and intertwined in a chain of logos argumentation that they complement, reinforce and crucially replace at its weakest points.³¹ The rhetorical development of this chain of argument is structured around the selection of certain topoi (inconclusive, open-ended social pre-formulations, like narratives, binary conceptual oppositions, etc.) that work as the common ground from which discourse proceeds.³² The rhetorical analysis proceeds by identifying in legal speech how different structures of topoi and patterns of pathos and ethos are arranged in mutual support as a means to gaining new insights about attitudes, value-preferences and supporting belief structures of legal decision-making communities.³³ Following this approach, the next section studies the ECtHR’s rhetorical construction of its social rights’ indirect protection discourse paying special attention to proportionality doctrine in the Garib case.

3. Proportionality balancing and the limits of social empathy in the ECtHR’s discourse: Garib v the Netherlands (2017)

This section is divided into two parts. The goal of the first part is to present the main topoi that structure the Court’s discourse in cases dealing with state socioeconomic policies and, in particular, the ideas that modulate the Court’s deference to those policies. In addition to providing a rough catalogue of topoi, the first part points to the spots where the rhetorical assistance of ethos and pathos is usually called for to supplement or complete flexible and inconclusive chains of logos argumentation.³⁴ This is done in order to prepare the ground for the rhetorical study of Garib v The Netherlands (2017) in the second part. This part tracks how the general topoi are rearranged through logos argumentation, but concentrates on ethos and pathos supplements in the construction of the Court’s discourse as the elements that help the most to reveal underlying value programmes.

The cases used in both parts of the analysis are generally characterised by their presenting conflicts between a variety of indirectly protected social rights and the economic and social policies of the Member States.³⁵ In the main, the formal status of socioeconomic rights in European human rights protective treaties gives rise to the classic argument of the ‘textual limitations’ which weakens their discursive position.³⁶ This, however, is not always the case and the ECtHR is sometimes more assertive in the indirect protection of socioeconomic rights.³⁷ Given the exceptionally malleable basis of these rights, the discourses produced in the cases dealing with them are especially suitable to track connections to broader socio-political attitudes and tendencies.

3.1. The building blocks of the Court’s deference: main topoi in socioeconomic cases

As a preliminary observation, one of the most characteristic features of the ECtHR’s discourse is the general arrangement of its argumentation. It presents first the problem as it is understood by the Court under the heading of ‘Facts’ and then proceeds to construe a legal solution by resorting to a series of familiar topoi. Though hardly original, this disposition of the discourse strongly reflects the enthymemic nature of legal reasoning pointed out by legal rhetoricians and distinguishes the ECtHR’s approach from the more authoritative style of the European Court of Justice which displays a clearer effort at mimicking logical deductive language in the construction of its case-law. As explained below, however, the ECtHR switches to a syllogistic style that appeals to deontic logic precisely when performing the part of its decision that is the least constrained by text or logic: the proportionality balancing.

Beside the input that the Court may consider when construing the problem of the case and its background under the heading of ‘Facts’ (this can include national and international law, legal history or comparative law), the ECtHR’s discourse about the legal solution to any case is typically controlled by a handful of central topoi that are combined and recombined in more or less flexible, yet repetitive sequences with variations in the tone and attention devoted to each of these discursive building blocks. In the main, the central clusters of topics are: the applicability and scope of rights protected in the Convention and its Protocols, the prima facie infringement of those rights, the legality of the restrictive measures, the legitimacy of the aims pursued and their proportionality.³⁸

In the specific case of socioeconomic rights, those topic clusters develop into other subtopics more specific to this subject-area. Focusing here on the legitimacy of the aims pursued by State authorities and the proportionality of the means chosen to achieve such aims, the tone of the Court’s discourse is usually characterised by a high degree of deference towards the social and economic policies and proportionality assessments of national authorities articulated around the dominant subtopic of States’ wide margin of appreciation (MoA). The strength of this subtopic is often buttressed by short, stereotyped references to self-styled pragmatic, economistic or utilitarian arguments about the scarcity of resources, the authorities being better placed to know the needs of their population, democratic deference, etc.³⁹

Against the force of the MoA topic, the ECtHR opposes its power of review based on the stereotyped argument that States are considered to act only ‘in principle’ within that margin, which must be verified in turn by the Court. This judicial review topic, however, is modulated by reference to the subsidiary or supervisory function of the Court in social rights cases which by default implies only a low-intensity control about the public aims pursued and the measures adopted by States in the exercise of their MoA. This type of soft control is discursively introduced through the ‘manifestly without reasonable foundation’ (MWRF) topic.⁴⁰

The ‘particular circumstances’ topic also plays a central role and adds a high degree of flexibility to the determination by the Court of the meaning and scope of other topics and subtopics. The ‘particular circumstances’ topic is shaped in turn by another series of commonplaces, e.g. the timing of restrictive measures, the existence of compensatory measures, the essence of the right violated, whether the victims’ subsistence is threatened by the deprivation or whether the individual burden they carry is excessive vis-à-vis the society or other groups in similar circumstances.⁴¹

Beyond the low intensity form of review, there is a cluster of ‘special situation’ sub-topics that may open the door to a higher intensity control of the MoA. This is the case when the Court considers that the measures examined involve a differentiated treatment based on gender, nationality, race, etc. or a negative impact on a ‘particularly important facet of a person’s existence or identity’, children’s best interest or a vulnerable group.⁴² These subtopics represent special situations or suspect grounds for rights’ restrictions in relation to which stronger justification is required. Thus, in order to justify the contested restrictions in such situations States are requested to present ‘very weighty reasons’ (VWR), which constitutes the controlling subtopic in this argument cluster.⁴³

One of the essential features of the topoi described is how they simultaneously allow reducing or increasing States’ MoA and the intensity of the Court’s scrutiny regarding both the legitimacy of public aims and the proportionality of the measures assessed within the framework of economic and social policy changes depending on highly indeterminate factors. In relation to the legitimate aims pursued by public authorities, for instance, the depth of the Court’s scrutiny appears to depend on whether the applicant challenges the legitimacy of the policies or not. Yet, when the parties either agree with or fail to challenge the legitimacy of public aims, the Court’s argumentation may still oscillate between curtly accepting the parties’ position without further inquiry and carrying out some scrutiny despite the parties’ lack of opposition.⁴⁴ And similarly, when parties challenge the public aims of the contested measures, the degree of scrutiny and deference towards authorities may vary from several pages of discussion⁴⁵ to just one line of emphatic approval or ironic dismissal of the mere possibility or thought of any challenge to the policy’s legitimacy.⁴⁶

As the following shows more in detail, the highly contextual, open-ended manner of combining and recombining such argumentation building blocks is hardly based on logos argument alone. Rather, the driving force underlying most important choices in the chain of reasoning is connected to the style and figures that carry discursive appeals to the ethos and pathos modes of persuasion. These appeals tend to reveal not simply the attitudes of the Court towards a particular case, but also broader visions vis-à-vis the victims of socioeconomic rights violations, their life and their interests in the context of social and economic public policy-making.⁴⁷ The rest of this section is devoted to describing how such aspects come together and play out in an instance of the ECtHR’s discourse.

3.2. Garib v The Netherlands (2017): the role of the pathos supplement

Mrs. Garib is an unemployed single mother of two children with a personal history of migration living in a central area of Rotterdam who is prevented by Dutch authorities from moving into a better apartment within the same area and forced to relocate to the outskirts of the city in application of a series of norms that aim to boost economic activity and improve public order in some impoverished downtown areas of Rotterdam by prohibiting unemployed people from taking up residence in those areas (para 8–14).⁴⁸ Applying Article 2 of Protocol No. 4 (A2-P4), the Grand Chamber (GC) reviews the Chamber’s assessment of the conflict between the freedom to choose one’s residence – which in this case is intrinsically connected to the indirect protection of the social right to housing – and State’s economic and social public policies, eventually deciding against the applicant based on the legitimacy of the aims and the proportionality of the measures evaluated (para 139).⁴⁹

The way in which the Court chooses, arranges and presents the topics that structure this judgement is essentially supported by a number of ethos and pathos appeals that constitute the invisible supplement of the discourse. In the following, some of those supplements are identified and analysed in terms of how they are interwoven with logos argument, the feelings and attitudes they appeal to and their general effect on the overall discourse.

3.2.1. Feeling the ‘inner-city problems’

The first striking feature about the Garib judgment is the description of the public policy purposes at the beginning of an extensive 26-page long summary of facts which mixes a number of issues and policy aims without establishing any explicit or clear link between them. Despite the apparently detailed account and the accumulation of information, the summary of the public authorities’ submission regarding their policy aims is rather unclear, especially about the very problem they are trying to address. Generally, the relevant national legislation gives local authorities the power to prohibit unemployed and low-income workers from moving into certain city areas as a means to solve ‘inner-city problems’ (para 21). As a Government’s explanatory memorandum to the Parliament excerpted in the Garib judgment puts it:

The emergence of concentrations of ‘socioeconomically underprivileged’ in distressed inner-city areas had been observed, with serious effects on the quality of life owing to unemployment, poverty and social exclusion. Many who could afford to move elsewhere did so, which led to the further impoverishment of the areas so affected. This, together with antisocial behaviour, the influx of illegal immigrants and crime, was said to constitute the core of Rotterdam’s problems. The need therefore existed to give impetus to economic improvement locally. (para 26)

And thus,

[t]he aim is to ‘assist the recovery’ of districts that have to contend with a cumulation of problems of a social, economic and physical nature. (para 31)

In other words, under the ‘inner-city problems’ label, the quality of life, poverty, public order, the promotion of economic activity, immigration and crime are thrown together without openly explaining, e.g. whether and how poverty is a problem of public order or low-income immigration is related to crime rates. Neither the explanations of the national courts that participated in the domestic proceedings nor the legislative history help to clarify the problems targeted and the purposes of the legislation (para 16, 18, 22 et seq.). Again, reproducing the explanatory memorandum to the Parliament, the Court notes in the ‘Facts’ that

[t]he minimal restriction on the right to freedom of settlement that may be the consequence of the measures proposed is justified, because the measures serve to protect public order … The concept of public order includes, in addition to the prevention of disorder, public safety, the prevention of crime … (para 31)

Seemingly, the legal and policy framework examined relies on conventional wisdom about causes and solutions to an amalgam of social issues. Yet, despite such lack of any open rational explanation about the problems and their possible causes and solutions – which would be expected to hinder the test of the adequacy and necessity of the measures later in the judgment – the GC seems in its description of ‘Facts’ and its assessment of the public interest below to figure out its meaning without much discussion. That is, the Court seems to share or sympathise with the national authorities’ implicit assumptions about what one should make out of these topics and the relations between them.

This is revealed among other things by how the summary of facts displays a prolific use of figures of emphasis and euphemisms (para 26),⁵⁰ metaphoric personifications (para 29, 31),⁵¹ and de-/intensifying language to support the authorities’ gloomy appraisal about the ‘quality of life’ in areas with high rates of recipients of social benefits, low-income workers and migrant population who create a ‘very severe stress’ (para 31). That is, the opening delimitation of the problem targeted and the aims pursued by national authorities refers the reader to implicit or hidden meanings about unstated causal connections between immigration, low-income workers, crime and social benefits that signals an empathetic attitude towards authorities’ perceptions, concerns and recipes for a solution.

The representation of legitimate public interest as defined by the Government contrasts with the distanced summary of the critical opinion issued by the Dutch Equal Treatment Commission (para 42–47) and the monotonous reproduction under the heading of ‘Other Facts’ of data regarding the percentage and total numbers of residents affected by the prohibition which in a somewhat utilitarian tone conveys the impression that, taken as a whole, the hundreds of persons actually prevented from taking up residence or indirectly displaced by the measures are an insignificant price to pay for the policy’s promises of prosperity (para 48–61, 65–69). The tedious tone in this part is only altered through intensifying adverbs that refer to popular feelings which tend to confirm the devastating social landscape described by the authorities (para 62).⁵² The same tone is deployed in the succinct presentation of the critical 2015 report of the University of Amsterdam which documents the lack of positive impact and causal connection between the measures adopted by national authorities and some of the social changes registered in the report (para 74).

3.2.2. The authority of paradigm

The next interesting aspect of the Court’s preliminary description of facts is its manner of resorting to the authority of the ‘Drafting History of Article 2 of Protocol No. 4’ to construe the inclusion of ‘economic welfare considerations’ in the public interest clause of Article 2(4) by reproducing verbatim several pages of the Committee of Experts’ report to the Committee of Ministers of 1965 (para 85). The excerpts selected reproduce the experts’ discussion as to whether and to what extent there should be limitations allowed on the rights of A2-P4 for the purpose of pursuing economic welfare. Especially relevant for the subsequent argumentation of the Court is paragraph 18 of the experts’ report quoted:

The majority of the Committee was against the inclusion of a provision permitting restrictions on the ground of economic welfare. In view, however, of the possibility that in particular areas it might be necessary, for legitimate reasons, and solely in the public interest in a democratic society, to impose restrictions which it might not always be possible to bring within the concept of ‘ordre public’, the Committee decided to insert an additional paragraph providing that the rights set forth in paragraph 1 might also be subject, in particular areas, to restrictions imposed in accordance with law and justified by the public interest in a democratic society. (para 85)

The text can be interpreted in at least two different ways. First, it can be read as expressing the Committee’s plain rejection of economic welfare reasons coupled with the acceptance of other non-economic reasons alone that go beyond public order in the public interest – this is what the previous discussion on public order would suggest. Or second, it can be understood that the Committee is first rejecting economic welfare grounds only to accept them paradoxically in the same paragraph under a different name. The Court will later choose the second approach.

The authority appeal that this reference helps to build is reinforced by the selection of comparative law under the heading ‘Practice Elsewhere’ with which the Court seems to borrow additional authority from Danish law. The referred legislation also creates the possibility for public authorities to exclude certain categories of people from living in certain areas allegedly to eliminate or prevent the formation of ‘ghetto areas’ (defined as social housing areas with more than 1.000 inhabitants) and in order to increase the quality of housing whenever the social makeup of an area includes, e.g. 50% of non-Western (sic) immigrants and their descendants, 2.7% of ex-convicts, 40% of unemployed, 50% of uneducated or people earning less than 55% of the average income (para 87–92). The implicit link between criminality, race and low-income workers in this legislation is rather apparent. Its reproduction in the ‘Facts’ construes a cross-European paradigm suggesting the reasonability of such policy.

3.2.3. Discrimination as metonymy

After thus defining the general limits of the problem and setting the tone of the judgment, the ECtHR opens the main body of its argumentation with the selection of the opening legal topoi that are going to structure its decision. Here the Court makes the first crucial choice by implicitly ruling out a higher intensity/VWR scrutiny of the exercise of the State’s MoA through the rejection of the applicability of Article 14 of the Convention on formal procedural grounds. Yet, as dissenting Judge Pinto de Albuquerque points out, the higher intensity/VWR scrutiny is broader and refers to more substantive situations than those covered by Article 14 prohibiting discrimination on grounds of gender, race, social origin, etc.⁵³ In other words, from the rejection of the applicability of Article 14 a rejection of the higher intensity/VWR test does not follow.

In the broader picture of the judgment, however, the Court associates here the larger topic of special situations that open the door to a higher intensity scrutiny solely with Article 14 (discrimination) and dissociates it by omission from other topics (e.g. negative impact on personality or vulnerable group) that would trigger the stricter VWR review of the MoA. This does not follow from any logical relation between the argument-bits presented. That is, such controversial choice can hardly be justified in terms of logos alone. Instead, what follows reveals that the decision is conveyed by metonymy (substituting a part for the whole) supported by concession, ethos appeals and the emphatic evocation of logic.

The Court begins by taking notice of the substantive submissions presented by the applicant and third parties in favour of the application of Article 14 (gender, race, social origin) and the Government’s opposition to such application. As other commentators of the ECtHR’s rhetoric have noted, this typical inclusion of the counter-discourse in the Court’s discourse conveys the impression that the question is being considered openly and fairly.⁵⁴ It is an appeal to fairness that reinforces the Court’s position by drawing on the figure of concession – it concedes one point to make a contending point stronger. First, the judgment emphatically accepts the argument that the Court is ‘the master of the characterization to be given in law to the facts’, but it immediately rejects the consequences of the argument by introducing a rhetorical dissociation between the notions of being free to characterise the facts and being ‘free to entertain a complaint regardless of the procedural context’, which is rejected (para 98).

The rejection is supported by appeals to the ethos of both the Court itself and the domestic courts through references to previous case-law as well as to the ethos of the applicant herself, who is reminded that she has only raised the issue of discrimination before the national courts (where the point was also rejected) and not before the Chamber (para 99–100). The evocation of logic (‘Consequently … ’) closes the construction as an appeal to the reader to feel logically compelled by the repetition and restatement of the rhetorical concession deployed before. The Court agrees that the facts should define a complaint and not the legal grounds relied upon by the parties, but the applicant cannot change before the GC the legal arguments submitted to and admitted by the Chamber even if these were wrong and missed a rather substantial element of the legal assessment (gender, race and social origin discrimination) (para 101). This, however, affects only the right of the applicant to raise the point. As the master of the legal characterisation of facts, the Court herself does not feel compelled to introduce that point in her assessment.

By focusing the discussion on Article 14 and the procedural argument against the ‘new’ allegation of the applicant, the attention of the reader is displaced from the fact that the Court herself could raise the point motu proprio. Thus, the rejection of the higher intensity/VWR review can be omitted in the rest of the judgment. The Court remains silent about the plausible characterisation of the facts as discrimination based on race, gender and social origin and implies the identity of Article 14 and the suspect grounds for enhanced review omitted. It simply rejects Article 14’s applicability and moves to the discussion of the complaint of the applicant under A2-P4, which constitutes the appeal to text authority that anchors the final decision.

3.2.4. The logos of non-sequitur

After briefly establishing the prima facie violation of the applicant’s freedom under A2-P4, the Court turns to the question of ‘Whether the third or the fourth paragraph of Article 2 of Protocol No. 4 should be applied’ (para 104 et seq.).⁵⁵ The crucial choice underlying this discussion is whether the measures contested should be assessed against the narrower benchmark of ‘ordre public’ (paragraph 3) or the broader standard of the ‘public interest in a democratic society’ (paragraph 4), a choice that can potentially expand or reduce the MoA.

The Chamber had decided to apply paragraph 4 by construing symmetrically antithetical relations between the two paragraphs that appear to logically compel the conclusion that they must have opposite meanings regarding, first, the rights affected and, second, their geographic scope. Suggesting contrast, the reader feels compelled to establish relations of opposition. According to this construction, as paragraph 3 covers restrictions of the freedoms protected both in paragraph 1 and 2, restrictions affecting only paragraph 1 must be covered by paragraph 4 to the exclusion of paragraph 3. Thus, as the contested measure ‘affects only the applicant’s right to choose her residence, not her right to liberty of movement or her right to leave the country’, paragraph 4 applies (para 106).

Yet, there is nothing in the letter of A2-P4 that would exclude the application of paragraph 3 to the freedom to choose one’s residence alone or the application of paragraph 4 to the other right enshrined in paragraph 1, the freedom of movement, to which paragraph 3 obviously applies as well.⁵⁶ Regarding the geographic scope, the Chamber suggests that, as paragraph 4 applies to measures implemented ‘in particular areas’, the reverse must follow in relation to paragraph 3. However, there is nothing in paragraph 3 that would prevent the application of public order-related measures in a ‘particular area’ alone. That is, from the obvious geographical limitation of measures covered by paragraph 4, the opposite does not follow in relation to paragraph 3.

Rather, the basis of the distinction between paragraphs 3 and 4 seems to be the purposes of the measures covered by them. Paragraph 3 applies to measures deployed for ‘national security or public safety, for the maintenance of ordre public, for the prevention of crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’. Paragraph 4 applies to those ‘justified by the public interest in a democratic society’. And this is what the Court appears to acknowledge when (contradicting or ignoring the Committee of Experts’ report to the Committee of Ministers of 1965 (para 85)) it points out that paragraph 4 was (allegedly) ‘added to provide for restrictions of the right to liberty of movement and freedom to choose one’s residence for reasons of “economic welfare”’ (para 109).

Nevertheless, as the public policy aims of the ‘Inner-City Problems’ legislation connect public order and economic welfare in a rather obscure manner, the decision to apply either paragraph 3 or 4 cannot logically flow either from the facts of the case or from the letter of A2-P4. That is, the decision of the Court to prefer paragraph 4 expanding the MoA and weakening its own review is not constrained by either text or logic. In order to rhetorically buttress this decision, the GC resorts to a slight reformulation of the quasi-logical antithetical device of the Chamber which, by suggesting a symmetrically reverse connection or opposition between the geographic scope and the breadth of the purposes of the measures covered by the two paragraphs, confuses and forces the reader to assume a non-existent logical link. Thus, according to the GC, paragraph 3 applies to restrictions that are specific in their purposes and unlimited in their geographic scope, whereas paragraph 4 conversely applies to restrictions geographically limited but broadly defined purposes (para 110). This construction also supplements the general impression that, as paragraph 3 specifies a number of more concrete purposes and the restrictions in the public interest of paragraph 4 are thematically unlimited, the latter must also be weakly controlled.

3.2.5. Legitimating silence

As mentioned above, the transparent discussion of the competing values and ends underlying any normative conflict, especially in human rights violations, is one of the promises that proportionality discourse has trouble to deliver. The case of Garib v The Netherlands provides an example of this problem that is harshly criticised, e.g. in Judge Pinto’s Dissenting Opinion. After examining and dismissing the applicant’s allegations as to the restrictions not being ‘in accordance with the law’, the Court is poised to discuss under a separate subheading the vital point of ‘whether the restriction served the “public interest”’ (para 111–115). Yet, in line with the hidden meanings that help the Court make sense of the confusing definition of the problems targeted and the aims pursued by the ‘Inner-City Problems’ regime, the assessment of whether the restrictions on Mrs. Garib’s freedom serve the public interest is implicit. The omission is supported in two short sentences by an appeal to the ethos of the Chamber and the applicant herself, who did not question in her submission the legitimacy or rationality of that legislation’s aims. Thus, as the Chamber emphatically put it:

The restriction here in issue was intended to reverse the decline of impoverished inner-city areas and to improve quality of life generally. There can be no doubt that this is an aim which it is legitimate for legislatures and city planners to pursue. Indeed, the applicant does not suggest otherwise. (para 115, emphasis added)

The GC’s abdication from even superficially scrutinising the rationality of the proposals of the ‘inner-city problems’ regime reveals not simply institutional and democratic deference towards national authorities, but also a degree of empathy and understanding towards the assessment and the concerns expressed by the authorities. The regime’s implicit stigmatisation of social benefit recipients and low-income workers; the connection between crime, immigration and unemployment; and the promotion of economic prosperity and public order by sacrificing and excluding immigrants and underpaid or unemployed workers from certain geographic spaces can only go unnoticed within the coordinates of a certain value-programme. The implied empathy for the world-view underpinning these propositions runs across the presentation of ‘Facts’, underlies the silence regarding the scrutiny of public interest and is projected into the final part of the judgment that discusses whether the national authorities exceeded their MoA in their balancing of public goals against human rights.

3.2.6. Diminution and social sacrifice

Turning to the final question of ‘[w]hether the restriction was “justified in a democratic society”’, the GC first presents a summary of the Chamber’s decision and the arguments of the parties. The inclusion of the counter-discourse provides again a sense of fairness; the tone and selectivity of this summary, however, announce how the GC intends to shape its own appraisal and to what effect.

The GC’s presentation of the Chamber’s opinion, on one hand, stresses from the outset that the latter’s decision has been based only on principles induced from the Court’s case-law on Article 8 of the Convention and Article 1 of Protocol No.1 (para 117). Once the technically neutral ethos of the Chamber is established, the summary of the decision reproduces most of the arguments of the national courts making a rather sympathetic evaluation of the permit system (para 16, 18). For instance, it emphasises through repetition the time limitation to which the measures are subjected – although it is clear from the file that the measures can be and are being extended for much longer periods of time in successive four-year segments.⁵⁷

Without delving into the critiques and suspicions about the regime raised during the legislative process and refusing to assess the means-ends adequacy or whether less restrictive measures were available, the presentation of the Chamber’s decision focuses on other more positive aspects of the system (like the safeguard clauses, the individual hardship clause and other accompanying measures) that are detailed to reject the notion that the legal regime and the public policy it embodies are ‘manifestly without reasonable foundation’ (para 118). With regard to the applicant, however, the tone of the Chamber’s excerpted argumentation is different. In fact, the Chamber simply reproaches Mrs. Garib her not having produced more information about her individual circumstances, especially concerning her wish to continue living in the relevant area, and seems puzzled about why the applicant did not move back to that area once she qualified for the residence permit a few months later (para 119–120).

The Chamber’s curt and authoritative tone and its lack of effort to understand the applicant’s situation only intensifies in the GC’s summary of the applicant’s arguments, which grows into a somewhat impatient and distanced tone. For instance, the GC reproduces and emphasises in quotation marks the applicant’s heavy-handed assertion that her rights under A2-P4 are ‘near absolute’, a characterisation that sounds rather unreasonable in the absence of context and moves the reader to suspicion (para 121). The Court further raises doubts about the applicant’s ethos by repeating again that she agrees with the policy decisions of the Government and accepts that the regime is not manifestly without reasonable foundation – which is the only and decisive test the Court will perform (para 123). This contrasts significantly with the more careful and extensive reproduction thereafter of the Government’s submission (para 126–135).

Against this backdrop, and mirroring the Chamber’s discourse, the GC’s own assessment begins by briefly stressing under a separate subheading how its argumentation is based on principles derived from a well-established case-law awarding States a wide MoA (para 136–139). The short summary of precedents emphasises the GC’s technically neutral ethos as it is poised to assess ‘carefully’ whether a ‘fair balance’ exists between public and individual interests. This opening, that also appeals to feelings of trust in the attitude and good will of the Court, introduces a sudden change in the tone and structure of the judgment in the decisive proportionality assessment, which is given a syllogistic layout that evokes logical cogency. Thus, after stating first the precedent-based principles underpinning the decision, the GC directly applies them to the ‘facts’ under consideration, i.e. (1) the legislative and policy framework and (2) the applicant’s individual case.

3.2.6.1. The legislative and policy framework: social empathy and the hidden meanings of deference

The way the broad principles described are applied to the national legislative and policy framework is crucial to grasp the rhetorical construction of the judgment as it confirms the hidden meanings and background beliefs that structure the discourse from the beginning. In passing and with assumptive brevity, it is finally here that the Court naturalises the relation between unemployment, social benefits, low-income work, antisocial behaviour, crime and illegal immigration, and sympathetically confirms that ‘the domestic authorities found themselves called upon to address increasing social problems’ that resulted from ‘impoverishment caused by unemployment and a tendency for gainful economic activity to be transferred elsewhere’ (para 142).

In fact, the Court plainly paraphrases the Government’s explanatory memorandum to the Parliament when the latter states that:

[t]he emergence of concentrations of ‘socioeconomically underprivileged’ in distressed inner-city areas had been observed, with serious effects on the quality of life owing to unemployment, poverty and social exclusion. […] This, together with antisocial behaviour, the influx of illegal immigrants and crime, was said to constitute the core of Rotterdam’s problems. (para 26)

Drawing on such premises the whole policy edifice under consideration feels more coherent. That is, if underpaid work and social benefits have some vague causal link to crime, antisocial behaviour, etc., then it makes perfect sense that any ‘bona fide’ economic activity yielding a higher income average must be the solution: ‘[t]he need therefore existed to give impetus to economic improvement locally’ (para 142). And to that end, it seems reasonable that the local authorities would seek to improve the economy and reduce unemployment, if necessary by reducing the physical number of unemployed people who are the cause of crime, antisocial behaviour, etc. – therefore, the authorities understandably

sought to reverse these trends by favouring new residents whose income was related to gainful economic activity of their own […]. Their intention was to foster diversity and counter the stigmatisation of particular inner-city areas as fit only for the most deprived social groups. It is for this purpose that the Inner-City Problems (Special Measures) Act was called into existence. (para 142)

Note the personification of the inner-city areas whose stigmatisation should be reversed, rather than that of low-income workers, social benefits recipients or immigrants.

The applicant’s argument based on the University of Amsterdam’s report that the measures are actually ineffective or that their effectiveness could not be empirically demonstrated is excluded from the proportionality assessment once more for procedural reasons as the report was produced a few years after the Inner-City Problems legislation was passed and ‘with the benefit of hindsight’ (para 146–147). In contrast, it seems more relevant that, despite the lack of data regarding the impact of the measures on security and quality of life, the authorities consider the measures adopted to be effective and have extended them to other areas and municipalities and for longer periods of time (para 148–149).

This sympathetic sharing of domestic authorities’ faith in their own measures is again reinforced by the emphatic repetition of the safeguard clauses, the temporal and geographic limitation of the restrictions, the individual hardship clause and the availability to potential victims of two levels of judicial review that fully respect fair trial requirements (para 150–155). The repetition of all these arguments culminates in the statement by the Court that, in designing the contested regime, the domestic authorities made ‘adequate provision for the rights and interests of persons’ potentially affected, like the applicant (para 156). That other less restrictive measures were admittedly available for the domestic authorities is irrelevant for the Court as long as they manage to strike a fair balance not exceeding their MoA, which is evaluated next (para 157).

3.2.6.2. The applicant’s individual case without the applicant

Finally, having accepted the proportionality of the permit system in general, the Court announces in a separate subheading that it is going to consider the ‘[a]pplicant’s individual case’. This is the part where the Court should weigh the interests of the individual in view of her particular circumstances against the general interest of society as envisaged by national legislation. Yet, this crucial section is awkwardly unspecific about Mrs. Garib’s circumstances. All her submissions regarding her good behaviour, her having been a resident in the area for more than 5 years and the state of disrepair of her first dwelling that would have caused her and her children health problems are dismissed as irrelevant vis-à-vis public interest or for lack of evidence (para 158–160). Such appraisal, particularly in the case of the state of disrepair of her first dwelling, is based on Mrs. Garib’s landlord not having requested a building permit from which the Court concludes that the only reason for the requested change of residence was ‘personal preference’, creating a somewhat whimsical image of Mrs. Garib that adds to her negative ethos in other parts of the judgment (para 162, 166).

The balancing proper is framed by analogy to the use of general interest considerations in environmental legislation to limit the freedom to choose one’s residence. In this context and within the authorities’ wide MoA, the evaluation of a ‘suitable accommodation’ depends on balancing the particular needs of individuals (family needs, financial resources) and the interest of local communities (para 161). Yet, when the Court turns to apply this formula, it appears that there are only unresolved questions about the particular needs of the applicant and her family. The Court wonders why Mrs. Garib did not stay in her original apartment and wanted to move to a new one within the same area; why did she not complain about her new dwelling; why did she not move back once she found work and qualified for living in the previous area (para 162–164). For all these reasons – or rather for the lack of them – the Court decides that Mrs. Garib had not suffered such a disproportionate hardship as to outweigh the general interest (para 165).

As it transpires at the end, the Court seems impatient of the applicant’s refusal to justify her desire to stay in the area where she had lived for more than five years with her two children. In a short and conclusive paragraph, the applicant’s attitude seems to be taken by the Court as a denial of its power to weigh conflicting interests, which would prompt the Court to rule in favour of the national authorities (para 166). But the Court’s impatience and reproach due to an apparently inadequate attitude of the applicant can only partially explain its empathy for the authorities’ narrative and the sheer lack of it for the applicant’s story whose gaps, despite the Court’s suggestions, can be easily filled with a little empathy and some effort to understand her circumstances based on what is known about them.

Why would an unemployed single mother of two children belonging to a minority group want to stay in the area where they had lived, gone to school, created a social network, become familiar with the available services, etc. for the previous five years and a half? Why would she not want to move back eight months after having organised a change of residence with two children and having found work there? Why would she rather be expelled than return to her first residence after being refused the permit to move within her original area? The lack of any effort on the side of the Court to grasp even the most obvious practical difficulties of her situation and the humiliation of being expelled from her neighbourhood, the contrast in the attitude and tone displayed in the treatment of the Government’s positions analysed and the disqualifying tone detected above vis-à-vis Mrs. Garib’s interests and persona produce an augmentation of the former and a diminution of the latter. In the final balance, the applicant stands as a rather abstract and almost anonymous being who has experienced a minor restriction, perhaps even only an inconvenience, against the background of the general interest of the economy.

4. Proportionality and the rhetorical management of value-conflict

One of the defining features of the discourse analysed is the lack of any actual balancing or comparison between the interests involved. That is, as the person and the interests of the applicant vanish in the final stage of the assessment, the comparison becomes purely rhetorical; it is devised to give the impression of measurement despite the complete lack of it.⁵⁸ This rhetorical figure is key to the construction of proportionality discourse as it conceals that the Court, rather than comparing, is simply deciding. And the deciding can only be based on a priori value preferences which are revealed by the strongly varying degrees of legibility (or illegibility) of the contending positions and interests involved.

The GC’s reproach about the lack of sufficient information concerning the applicant’s position betrays the Court’s inability or unwillingness to read the individual circumstances and socio-political context that would have required special legal protection for the applicant and a high-intensity scrutiny against public measures overwhelmingly affecting the euphemistically called ‘migrant population’ – meaning mostly persons of African and Middle-Eastern descent.⁵⁹ Such illegibility sharply contrasts with the effortless decipherability of policy aims whose nature and rationale remain hidden under a heap of vague and fragmentary references to confusing declarations about the whole policy construct (e.g. about the role of public order aims). This is further supported by the obscuring effect of the means-ends rhetoric deployed.

In contrast to the value-value dialectic underlying other generic forms of balancing that openly compare two independent and conflicting values, proportionality balancing is characterised by a means-ends discourse which does not need to debate embedded conflicts of ends.⁶⁰ That is, while the generic balancing of two moral values necessarily involves a more or less intense discussion about the moral correctness of preferring one value over another in a particular context, means-ends discourse tends to move the focus to the relationship and quality of a given means towards one particular aim and obscure the subjacent value-conflict that underlies every rights discussion.⁶¹ These discursive features are mobilised as a value-conflict management strategy in the Garib case, where the refusal to delve into the legitimacy of public policy aims is reinforced by strong assumptions about the need to boost economic growth (expressed in terms of curbing ‘economic stagnation’) through the application, if necessary, of harsh measures that borrow from and rely upon the policy realm of public order – even if less restrictive measures were available.⁶²

The overall result is a type of discourse that hardly lives up to the transparency and rationality standards laid down by the proportionality doctrine.⁶³ Yet, while the rationality and the persuasiveness of the discourse are not predicated upon proportionality reasoning, the discourse itself is far from irrational or unpersuasive from the point of view of a particular value programme.

5. Discipline and sacrifice rhetoric in contemporary European neoliberal rationality

The critical rhetorical study of judicial discourse rejects the dominant rational argumentation theory that ignores or downplays the emotional aspect of legal language; yet, there are different opinions about the scope and the reading of its political ramifications.⁶⁴ In this regard, the present study links with Susan Marks’s view that denies not only the necessity of legal reasoning, but also the full contingency thereof.⁶⁵ It shows that it is possible to identify discursive elements and patterns that re-elaborate themes and reflect unstated world views that must be read and understood in the context of the political struggles of our time. While not presuming the lack of freedom of individual decision-makers, the comprehensive study of rhetoric (incl. logos, ethos and pathos) reveals ‘underlying shared assumptions’, biases, or ‘blind spots’ that not only expose unexamined political positions and demonstrate a lack of neutral, technical determination in judicial work, but also, and more importantly, can create broader spaces to debate and counter such assumptions.⁶⁶

This approach also connects with the mid-twentieth-century turn to ideology critique in rhetorical studies as a rejection and reformulation of the ‘neo-Aristotelian’ school and its failure to apply the study of linguistic structures to improve our understanding of how they are developed and appropriated for the construction of a legitimation framework with political purposes.⁶⁷ From this viewpoint, driven by pathos and ethos at the crucial points of balancing policy goals, the rhetorical construction of the sampled proportionality discourse reflects more than the well-known shortcomings of proportionality doctrine’s claim to rational stringency; it also reveals some underlying principles that render the product coherent and even persuasive within a broader normative framework. The following tries to shed some light on that framework connecting with previous studies about the dominant forms of neoliberal rationality.⁶⁸

First, the Court’s absent sympathy for Mrs. Garib, and other persons like her, who must undergo such humiliating treatment in the name of economic growth seems justified by the underlying belief in the promises of ‘prosperity for all’ supporting that paramount goal, which appears as a magic solution to an indeterminate number of complex problems – from uncivil behaviour and criminality to the general quality of life – that logically trumps the mere comfort, rather than rights, of a few.⁶⁹ For this reason, it is acceptable to physically substitute responsible entrepreneurs and professionals who have a ‘gainful economic activity of their own’ for the unemployed and immigrant population left behind who are presented as the cause of the impoverishment of an area which becomes the actual subject of social action and whose stigmatisation should be reversed – not that of the residents who are expelled.⁷⁰ This understanding of social policy does not only stigmatise and burden unemployed and underpaid workers who suffer the consequences of such reforms; it also denigrates dependency and social benefits in the name of ‘fostering diversity’.⁷¹

Such discourse re-elaborates the theme of entrepreneurial reason in public affairs through a contemporary version of the 1990s entrepreneurial urbanism that Peck describes as ‘urban creativity strategies’, a policy model precipitated by public financial austerity and marketisation policies that relies on the belief that economic growth – the main goal and benchmark of all public policy – can best be achieved by the attraction via induced gentrification of a creative class of entrepreneurs and the expulsion of the underclasses.⁷² In this vein, the ethos and pathos moves of the Garib judgment referring to the applicant echo the appeals to the responsibilization of individuals for the collective consequences of neoliberal social policies which have been transferred from the political to the economic semantic order in neoliberal rationality.⁷³ As unemployment, job insecurity and the reduction of the social safety net to a minimum due to neoliberal labour and social reforms continue fuelling poverty and the breakdown of social norms, neoliberal political discourses blame the victims of neoliberal policies for the consequences thereof.⁷⁴

Moreover, in the terms presented by State authorities and accepted by the Court in the judgment, immigration and social disadvantage are discursively construed as a source of inherent criminality when the ‘Inner-City Problems’ regime’s selective exclusion of low-income (mostly migrant) workers from certain geographic areas is validated as a fight against a ‘selective migration’ which is considered the cause of an indeterminate number of social, economic and public order issues (para 126). This and the manifest illegibility for the Court of the social and political circumstances of the population affected by such urban policy echoes the rise of ethnic nationalism that accompanies the neoliberal elimination of the pursuit of equality as a marker of citizenship and leads to the necessary reconstruction of social solidarity via religion or ethnicity characteristic of present stage European societies.⁷⁵ In this sense, the Court’s leaving the State’s arguments about public order uncommented, simply restating the economic promises of the national regime, approves the implicit connection between the pursuit of economic growth and public order that further opens the door to the intensified curtailment of human rights in the name of neoliberal economic and social policies and confirms the authoritarian turn in neoliberal rationality as the dissonance between neoliberal promises of prosperity and the experienced reality increases.⁷⁶

Finally, and also connected to this development, a particularly interesting aspect of the Court’s discourse sampled is the display of several features pertaining to the rhetoric of social sacrifice that has become a prominent element of post-austerity neoliberal political and legal discourses.⁷⁷ The public ritual of sacrifice, which is typically used in human societies to conceal the violent nature of takings by transforming them into an inescapable necessity for the ‘greater good’, has become a necessary supplement for post-austerity neoliberal discourses to justify the sacrifice of rights and the social transfer of resources upwards for the greater good of the economic order – in this case a geographic area and the rights of its inhabitants.⁷⁸

More specifically, the ECtHR’s discourse displays some of the frames of justification identified by Wang in relation to current neoliberal market-driven sacrifice rhetoric. First, with its presentation of state policies – especially of the legislative process and the rationale and aims of the legislation, the Court upholds the state’s construction of the total depravity of the pre-existing economic condition (economic stagnation – no growth) that is considered accursed by the institutions of authority, an abomination for the sacred ‘economic profitability’ of those areas.⁷⁹

Second, there is a strong presence in the Court’s discourse of the theme of limited realisation of the predestined economic deliverance which, in the face of the non-fulfilment of neoliberal promises of ‘prosperity for all’ (e.g. part of the population must be expelled in the pursuit of that prosperity), turns to the myths associated to growth (the increased price of rent in the area, for instance) as the means to improve the ‘quality of life’ which calls for no further evidence in terms of such policies’ effectiveness (para. 148–149).⁸⁰ Within this discursive frame, the promised economic goals become a self-justifying truth allowing the escape from unacceptable facts.

This frame of justification is connected to the theme of the irresistibility of takings by public authorities which appears in the Court’s construction of the MoA and its low-intensity review (para. 98–101) as well as the presentation of the politically driven sacrifice of rights as a force of nature that forces state authorities to act (para. 129). The Court’s weak judicial review and its limited integration of counter-discourse, thus, function as mechanisms to manage discontent by setting the boundaries of contestability as subsidiary rituals to release pressure.⁸¹ This allows for the sustainable expansion of the legislation of sacrifice guaranteeing the perseverance of the ritual, that is, rendering ‘exceptional’ sacrifices permanent, as with their extension for up to 20-year periods (para. 72, 77–78).⁸²

Again, this analysis does not aim at describing any ECtHR’s pervasive judicial policies with a view to predicting what the Court will do in future case-law. Rather, this explains how neoliberal discourses have been transported into the Court’s legal discourse in this particular instance with a view to showcasing how such discourses can penetrate human rights language. Needless to say, the control of the ECtHR’s discourse in this case by neoliberal rationality and its supporting discourses is not a consequence of proportionality doctrine’s shortcomings or its means-ends discursive orientation. Being just another indeterminate notion that happens to have been in vogue in the European legal culture for a few decades, the ways and outcomes of its application depend on the institutional interpretive communities that apply it. It is those interpretive communities that the rhetorical analysis of the proportionality discourse also speaks about in the hope to better understand their (subconscious) collective value programmes and reopen the debate about them by supporting the development of more rhetorically effective counter-discourses.

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Juan J. Garcia Blesa

Juan J. Garcia Blesa is senior research associate at the University of Hagen in Germany where he coordinates the international PhD training programme in law. He teaches seminars on contemporary approaches to legal research and public international law. Juan's current research interests focus on the relationship between human rights and international economic law in international dispute settlement mechanisms. He also holds a long-standing interest in matters relating to critical legal scholarship, rhetorical analysis of law and international legal cultures. Juan has participated in a number of international academic projects relating to legal studies in various capacities for external organisations such as the Deutsche Akademischer Austauschdienst (DAAD) and the EU Commission.

Notes

1 Garib v The Netherlands [GC] no. 43494/09, judgment, 6 November 2017.

2 Basak Cali, ‘The European Court of Human Rights and Accountability for Neoliberal StateConduct: Never the Twain Shall Meet?’, in Legal Trajectories of Neoliberalism: Critical Inquiries on Law in Europe, ed. Margot E. Salomon and Bruno de Witte (EUI Working Paper Robert Schuman Centre for Advanced Studies 2019/43), 21–25.

3 An attempt at summarising the immense body of literature directly or indirectly commenting on the case seems pointless in this context. Suffice it to mention here Wouter van Gent, Cody Hochstenbach, and Justus Uitermark, ‘Exclusion as Urban Policy: The Dutch “Act on Extraordinary Measures for Urban Problems”’, Urban Studies 55, no. 11 (2018): 2337–53; and in a broader context, Mehmet Faruk Kocak, ‘Protecting the Right to Housing in the Era of Financialisation: Four Principles for Urban Renewal’, The International Journal of Human Rights 27, no. 3 (2023): 498–528.

4 David M. Trubek ‘Where the Action Is: Critical Legal Studies and Empiricism’, Stanford Law Review 36, no. 1/2 (1984): 600–5. On the distinction between naturalist and interpretivist research approaches, see Alexander Rosenberg, Philosophy of Social Science, 5th ed. (Routledge, 2018), 11–33; Martin Hollis, The Philosophy of Social Science. An Introduction (Cambridge University Press, 2002), 8–16.

5 Rosenberg, Philosophy of Social Science, 13.

6 Ibid., 41–50.

7 As it seeks to understand what law ‘does’ in social life, interpretivist legal work is, in spite of its anti-positivism, broadly ‘empirical’, Trubek, ‘Where the Action Is’, 600. In particular, psychological states (beliefs, desires, consciousness) are studied indirectly through speech (above all, spoken or written language), Rosenberg, Philosophy of Social Science, 48. In this article, a court decision is the basis for understanding a discourse that stands on its own without necessarily being the only or even the dominant institutional discourse. The importance of the case is given by its connection to certain systems of legal and extra-legal belief and the way this connection is revealed in the judicial practice of the ECtHR. In this regard, however, there is often a misplaced urge to assess critical interpretivist research against scientistic/positivistic standards and expectations. Notably, legal interpretivist work might be required to produce causal explanations about why a specific social situation is the unidirectional consequence of a specific set or larger cluster of legal beliefs, e.g. Alan Hunt, ‘The Ideology of Law: Advances and Problems in Recent Applications of the Concept of Ideology to the Analysis of Law’, Law & Society Review 19, no. 1 (1986): 11–17. This objection, however, confuses the link between belief and action with a surrogate form of causation. That is, it ignores the rejection of causation as a scheme of explanation in interpretivist research which, instead of causal connections, explores the interrelatedness between actions, beliefs, social order and legal consciousness through the complex ‘logic of situations’ – ‘the sense an act makes against the background of a social code of rules, practices and beliefs’, Roberto Mangabeira Unger, Law in Modern Society. Toward a Criticism of Social Theory (The Free Press, 1977), 254–5.

8 Trubek, ‘Where the Action Is’, 591–592; and, more widely, Rosenberg, Philosophy of Social Sciences, 23–28. This position is also connected to philosophical pragmatism as it rejects the fact-value dichotomy and the notion that the purpose of knowledge is the representation of ‘reality’ (e.g. through generalisations), while it tries to learn something more about ‘what is out there’ in order to get a better grasp of the connection between belief and action, Richard Rorty, Consequences of Pragmatism (Essays: 1972–1980) (University of Minnesota Press, 1982), 160–6. In this sense, Garib v the Netherlands happened, it is ‘out there’, and understanding it better can help move away from the system of beliefs with which it is connected.

9 Robert Alexy, ‘On Balancing and Subsumption: A Structural Comparison’, Ratio Juris 16, no. 4 (2003): 433, 436; see also Robert Alexy, Theorie der Grundrechte, 9th ed. (Suhrkamp, 2020), 143f, 520–1; and Robert Alexy, A Theory of Legal Argumentation: The Theory of Rational Discourse as Theory of Legal Justification (Clarendon Press, 1989), 8. Cf. also Niels Petersen, ‘Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test’, German Law Journal 21 (2020): 163.

10 Alexy, Theorie der Grundrechte, 100; Stephen Gardbaum, ‘Positive and Horizontal Rights: Proportionality's Next Frontier or a Bridge Too Far?’, in Proportionality: New Frontiers, New Challenges, ed. V.C. Jackson and M. Tushnet (Cambridge University Press, 2017), 221, 224–6.

11 Niels Petersen, ‘How to Compare the Length of Lines to the Weight of Stones: Balancing and the Resolution of Value Conflicts in Constitutional Law’, German Law Journal 14, no. 8 (2013): 1389–97; and Petersen, ‘Alexy and the “German” Model’, 172.

12 Giovanni Sartor, ‘The Logic of Proportionality: Reasoning with Non-Numerical Magnitudes’ German Law Journal 14, no. 8 (2013): 1419–56.

13 Even where comparison is accepted, the controversy between incomparabilists and anti-incomparabilists is far from settled, in particular, whether the basis of comparison is practical reason or nonrational motivations and sheer will. Several accounts of these divergent positions can be found in Ruth Chang, ed., Incommensurability, Incomparability and Practical Reason (Harvard University Press, 1998).

14 Petersen, ‘How to Compare the Length of Lines’, 1389–97, 1408; Petersen, ‘Alexy and the “German” Model’, 172; Jürgen Habermas, Between Facts and Norms (Polity Press, 1996), 240–61, especially 242, 258. Cf. also S. Tsakyrakis, ‘Proportionality: An Assault on Human Rights?’, International Journal of Constitutional Law 7, no. 3 (2009): 474. The problem appears only manageable from the (uncritical) acceptance of some sort of judicial law-making, cf. J. Waldron, ‘Fake Incommensurability: A Response to Professor Schauer’, Hastings Law Journal 45, no. 4 (1994): 813, 815–7, 823. As Alexy puts it in a broader context, ‘[i]n many cases even the norm from which one starts is not a norm of positive law’, Alexy, A Theory of Legal Argumentation, 228.

15 Katharina Sobota, ‘Logos, Ethos, Pathos: A Quantitative Analysis on Arguments and Emotions in Law’, in Retorik & Rätt (Iustus Förlag, University of Uppsala, 1994), 155–71, 159. On the rhetorical approach applied in this work, see next section.

16 See e.g. Laura Clérico and Martín Aldao, ‘An Argument for the Test of Proportionality in Concreto: Silenced Voices from the Margins to the Center’, in Proportionality, Balancing, and Rights: Robert Alexy’s Theory of Constitutional Rights, ed. J.R. Sieckmann (2021), 215–29, 217f; Janneke Gerards, ‘Abstract and Concrete Reasonableness Review by the European Court of Human Rights’, European Convention on Human Rights Law Review 1 (2020): 218–47.

17 The strategic mobilisation of indeterminacy is especially clear in the case of international investment law and arbitration, where wildly indeterminate investment treaties give huge powers to investment arbitrators and courts to advance certain politically controversial values as a matter of deliberate policy, see e.g. René Ureña, ‘Of Precedents and Ideology’, in Critical International Law: Postrealism, Postcolonialism and Transnationalism, ed. P. Singh and B. Mayer (Oxford University Press, 2014), 276–303. See more widely B. Golder and D. McLoughlin, eds., The Politics of Legality in a Neoliberal Age (Routledge, 2018); H. Brabazon, ed., Neoliberal Legality: Understanding the Role of Law in the Neoliberal Project (Routledge, 2017); D.M. Trubek and A. Santos, eds., The New Law and Economic Development: A Critical Appraisal (Cambridge UP, 2006).

18 Wendy Brown, Undoing the Demos: Neoliberalism’s Stealth Revolution (London: Zone Books, 2015), 115–21, especially 116–7; Pierre Dardot and Christian Laval, The New Way of the World: On the Neoliberal Society (London: Verso, 2017), 4–6.

19 Dardot et al., The New Way of the World, 168–191; Brown, Undoing the Demos, 62–72; David Harvey, A Brief History of Neoliberalism (Oxford: Oxford UP, 2005), 65–98, 159–66; Francois Denord, Rachel Knaebel and Pierre Rimbert, ‘L’ordolibéralisme allemand, cage de fer pour le Vieux Continent’, Le Monde Diplomatique (August 2015): 20–1.

20 This echoes Weberian, Foucauldian and the Frankfurt School’s insights about the nature and role of techno-bureaucratic rationality in modern societies, Brown, Undoing the Demos, 116 et seq.; Duncan Kennedy, ‘A Semiotics of Critique’, Cardozo Law Review 22 (2001): 1161–3.

21 Jamie Peck, Constructions of Neoliberal Reason (Oxford: Oxford UP, 2010), 33–4.

22 Cf. e.g. G. MacNaughton and D.F. Frey, eds., Economic and Social Rights in a Neoliberal World (Cambridge UP, 2018); D. Lettinga and L. van Troost, eds., Can Human Rights Bring Social Justice? Twelve Essays (Strategic Studies, Amnesty International Netherlands, 2015).

23 The linguistic philosophical foundations of legal post-realism rest among other things upon the notion that language is not a codex or list of rules from which the meaning of words would derive as this view cannot explain the undeniable room for play and innovation in language, cf. Ludwig Wittgenstein, Philosophical investigations, trans G.E.M. Anscombe et al., 4th ed. (Wiley-Blackwell, 2009) para. 151, 185, 201; Jacques Derrida, ‘Structure, Sign and Play in the Discourse of the Human Sciences’, in Writing and Difference (Routledge, 2001), 351et seq. For the importance of the linguistic concept of code in mainstream jurisprudence and its semiotic critique, see Peter Goodrich, Legal Discourse. Studies in Linguistics, Rhetoric and Legal Analysis (MacMillan Press, 1987) 65 et seq. On the origins of the legal indeterminacy thesis in early twentieth century’s legal realism, see F. Munger and C. Seron, ‘Critical Legal Studies Versus Critical Legal Theory: A Comment on Method’, Law & Policy 6, no. 3 (1984): 257–97. The indeterminacy thesis in late twentieth century and early twenty first century critical legal research, however, differs in significant respects from the above and posits not only language indeterminacy, but also a stronger claim to value and systemic indeterminacy, Mark Kelman, A Guide to Critical Legal Studies (Harvard University Press, 1987), 12–13. See also Jack M. Balkin, ‘The Crystalline Structure of Legal Thought’, Rutgers Law Review 39, no. 1 (1986): 1–110, at 68 et seq.; Rosemary J. Coombe, ‘Room for Manoeuver: Toward a Theory of Practice in Critical Legal Studies’, Law & Social Inquiry 14 (1989): 69–121, at 100 et seq.; Duncan Kennedy, ‘Legal formality’, Journal of Legal Studies 2 (1973): 351–98, at 394 et seq.; Duncan Kennedy, A Critique of Adjudication: fin de siècle. (Harvard University Press, 1998), 157 et seq., 308 et seq.; Pierre Schlag, ‘Cannibal Moves: An Essay on the Metamorphoses of the Legal Distinction’, Stanford Law Review 40, no. 4 (1988): 957.

24 This is also predicated on the insight that the ability of language users to generate meaning from words derives from their sharing interests, understandings and a ‘form of life’ (Wittgenstein, Philosophical investigations, para. 241–2) and is echoed in legal studies by critical approaches to law, cf. Schlag, ‘Cannibal Moves’, 938; Roger Cotterrell, Law’s Community: Legal Theory in Sociological Perspective (Clarendon Press, 1996), 104 et seq., 230 et seq.; and Kennedy, A Critique of Adjudication, 228 et seq. The central role of interpretive communities is also acknowledged by part of mainstream jurisprudence, see e.g. Richard A. Posner, ‘Conventionalism: The Key to Law as an Autonomous Discipline’, University of Toronto Law Journal 38, no. 4 (1988): 333–54; Richard A. Posner, ‘The Jurisprudence of Skepticism’, Michigan Law Review 86, no. 5 (1988): 827–91; Andrew Altman, Critical Legal Studies. A Liberal Critique (Princeton University Press, 1990), 182 et seq.; Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (Oxford University Press, 2005), 27, 203.

25 Susan Marks, ‘False Contingency’, Current Legal Problems 62, no. 1 (2009): 1–21; Kennedy, A Critique of Adjudication, 288–9, 293–4.

26 Goodrich, Legal Discourse, 185.

27 On the technical modes of persuasion (ethos, logos, pathos) and their role in legal discourse, see generally Aristotle, The Art of Rhetoric, trans. H.C. Lawson-Tancred (Penguin Books, 1991) 74–5 Chapter 1.2, 1356a; and Katharina Sobota, ‘Logos, Ethos, Pathos’, 157–9.

28 Sobota, ‘Logos, Ethos, Pathos’, 157. Logos, understood as argumentation in the narrow sense, includes implicit references that make their identification hard – indeed, ‘it is primarily a matter of intuition’, ibid.

29 Ibid., 158.

30 Ibid., 158–9. The catalogue of such figures is extensive and typically encompasses metaphor, metonymy, association, dissociation, concession (apologismus), contrast, a variety of intensifiers, etc. Sobota’s catalogue e.g. includes 37 figures, ibid.

31 Mirjami Paso, ‘The Court of Justice of the European Union as a Rhetorical Actor’, Maastricht Journal of European and comparative Law 19, no. 1 (2012): 20. For instance, logos, ethos and pathos may appear mixed with each other when courts hint at the ethical tendencies or personal character of workers and their labour unions or make references to the court’s own protective ethos vis-à-vis workers’ rights, Sobota, ‘Logos, Ethos, Pathos’, 168–9.

32 That is, not as a logical syllogistic deduction that starts from general normative premises and moves to facts and then conclusions, but as an enthymeme, i.e. a rhetorical syllogism that starts with a problem and takes the shape of a heuristic discussion about its solution on the basis of a common place idea (a topos), cf. Katharina Sobota, ‘System and Flexibility in Law’, Argumentation 5 (1991): 275–82; Aristotle, The Art of Rhetoric, 1395b–1397a

33 Passo, ‘The Court of Justice’, 18; Goodrich, Legal Discourse, 168; and Jack M. Balkin, ‘A Night in the Topics: The Reason of Legal Rhetoric and the Rhetoric of Legal Reason’, in P. Brooks et al. (1996), 214, 220.

34 As pointed out above, topoi are open-ended formulations of common ideas generally agreed upon by an audience (e.g. human dignity) that, applied to a problem, serve as common ground to connect with that audience and start the enthymemic construction of a chain of arguments shaped in different ways by rhetorical figures of logos, ethos and pathos. Being aware of the usual topoi that structure a type of cases is crucial to the rhetorical analysis of another case that, while being different, still draws on and re-elaborates those general topoi for new purposes.

35 Socioeconomic rights are understood here as those human rights that, built upon the idea of equality, aim to fulfil the basic needs of a dignified human life and promote social inclusion and solidarity. These rights typically encompass health, education, social security, labour protections and housing. Although socioeconomic rights are separated in most international human rights treaties from civil and political rights, both types of rights enjoy the same legal status and are generally considered indivisible both as a normative commitment (Ariel Zylberman, ‘The Indivisibility of Human Rights’, Law and Philos 36 (2017): 389–418) and in practice (Jan Essink, Alberto Quintavalla, and Jeroen Temperman, ‘The Indivisibility of Human Rights: An Empirical Analysis’, Human Rights Law Review 23, no. 3 (2023): 1–18). In the European human rights system, social rights and civil and political rights are separately protected, the former being enshrined in the European Social Charter which does not come under the purview of the ECtHR. Although the Court has developed the indirect protection of some socioeconomic rights from the civil and political rights of the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols, this protection is subject to stronger variations, especially through the extra-legal influence of economic circumstances, which may strengthen or weaken the indirect protections, see Caroline Omari Lichuma, ‘Of Dark Clouds and Their Silver Linings: Crisis as Opportunity in the Economic and Social Rights Jurisprudence of the European Court of Human Rights’, Goettingen Journal of International Law 12, no. 1 (2022): 13–47.

36 This covers in practice not only the formal limitation of the Convention and its Protocols, but also jurisdictional boundaries and admissibility hurdles, Basak Cali, ‘The European Court of Human Rights and Accountability for Neoliberal StateConduct’, 22.

37 Lichuma, ‘Of Dark Clouds and Their Silver Linings’, 31, 34.

38 From the interpretivist viewpoint adopted here, specific beliefs depend upon systems of ideas shared by a community; such systems are constellations of interrelated beliefs that cluster together and produce meaningful wholes. Legal ideas, as systems of belief, are not isolated from each other. They are organised by certain principles of meaning. Legal interpretivism tries to identify these principles and show how they are linked to other legal and nonlegal cultural codes with which they form larger and changing semantic systems and visions of life, Unger, Law in Modern Society, 250–2; Trubek, ‘Where the Action Is’, 604. In the rhetorical analysis of law, some of these ideas are also defined as topoi that build clusters of topoi and structure judicial decisions like ‘trees of arguments’, Katharina von Schlieffen, ‘Zur topisch-pathetischen Ordnung juristischen Denkens: Resultate empirischer Rhetorikforschung’, in Die Sprache des Rechts: Recht Verhandeln, Argumentieren, Begründen und Entscheiden im Diskurs des Rechts, ed. Ken D. Lerch (Walter de Gruyter, 2005), 422.

39 Cf. e.g. Hutten-Czapska v. Poland [GC], no. 35014/97, para 166, ECHR 2006; Dubská and Krejzová v. the Czech Republic [GC], nos. 28859/11 and 28473/12, para 179, ECHR 2016; Ayangil and Others v. Turkey, no. 33294/03, para 50, 6 December 2011; Koufaki and Adedy v. Greece (dec.), nos. 57665/12 and 57657/12, para 31, 7 May 2013.

40 James and Others v the United Kingdom, 21 February 1986, para 46–54, Series A no. 98; The National & Provincial Building Society, The Leeds Permanent Building Society and The Yorkshire Building Society v The United Kingdom, no. 117/1996/736/933-935, judgment, 23 october1997, para 80–3.

41 Koufaki et al., para 37–48; Da Conceição Mateus and Santos Januario v Portugal, 8 October 2013 (Apps. 62235/12 and 57725/12), para 24–9.

42 Dubská et al., para 178.

43 Stec and Others v the United Kingdom [GC], nos. 65731/01 and 65900/01, 12 April 2006, para 43, 52; Gaygusuz v Austria, no. 17371/90, 16 September 1996, para 42.

44 Stec et al., para 54.

45 James et al., para 47 et seq.

46 Da Conceição et al., para 26, Koufaki et al., para 37–41, Dubská et al., para 172–3.

47 Cf. e.g. with regard to criminal procedural standards the study in Laura Ervo, ‘The Hidden Meanings in the Case Law of the European Court for Human Rights’, Semiotica (2016).

48 All references to the Garib case are inserted in the main text.

49 The issue is dealt with as the direct violation of the protected freedom of residence (Article 2 of Protocol No. 4, hereinafter A2-P4) which indirectly touches upon the right to housing. The applicable principles are induced from the Court’s case-law on Article 1 Protocol No. 1, Garib v The Netherlands [GC] no. 43494/09, judgment, para. 117, 139, 6 November 2017. In the UN system the right to housing is also ‘integrally linked to other human rights’ like the freedom of residence, see e.g. UN Committee on Economic, Social and Cultural Rights, General Comment No. 4: The Right to Adequate Housing (1991) E/1992/23, para. 7, 9.

50 See also Garib, para 29, ‘to encourage settlement by persons with an income from employment (or past employment), professional or business activity or student grants and on the other to stem the influx of socioeconomically deprived house-seekers with a view to increasing population diversity’.

51 ‘a sort of breathing space is thus created for the district concerned, so that the measures generally already ongoing to provide durable improvement of the situation in those areas or districts can actually produce their effects. … releaving the preassure on urban areas … ’ (ibid., para 31, italics added).

52

the increase in the perception of public safety had been more rapid than the Rotterdam average. Tarwewijk had shown an increase initially, but was now back to where it had been before the measure was introduced. One other area had actually declined significantly in this respect. All of the areas where the housing permit requirement applied were still perceived as considerably less safe than Rotterdam as a whole.

See also ibid., para 70,

In terms of social index, Tarwewijk continued to score lowest of all the Rotterdam districts. Social cohesion was very weak, which was explained by the number of house moves but also by a general lack of participation in social life. In terms of residential environment (leefomgeving), the district was vulnerable, the problem being a lack of suitable housing.

53 Dissenting Opinion of Judge Pinto de Albuquerque joined by Judge Vehabovic, para 13.

54 Ervo, ‘The Hidden Meanings’, 226.

55 ‘There has therefore undoubtedly been a “restriction” on her “freedom to choose her residence”’, Garib, para 104.

56 A similar argument is advanced by the Government that the general applicability of paragraph 3 to paragraphs 1 and 2 and the exclusive applicability of paragraph 4 to paragraph 1 would automatically make the scrutiny of measures affecting only paragraph 1 fall under paragraph 4, cf. ibid., para 108.

57 In 2012 the regime is extended for a period of 20 years, ibid., para 72, 77f.

58 Rhetorical comparisons are defined by the lack of terms of reference, Chaim Perelman and L. Olbrechts-Tyteca, The New Rhetoric: A treatise on Argumentation, trans J. Wilkinson and P. Weaver (University of Notre Dame Press, 1971), 242.

59 Garib, para 95–102.

60 Gardbaum, ‘Positive and Horizontal Rights’, 227f.

61 This effect is often not attenuated by the preliminary verification of legitimate aims pursued by restrictive public measures in the ECtHR’s case-law, see e.g. Da Conceição et al., para. 9–22; Da Silva Carvalho Rico v Portugal, 1 September 2015 (App. 13341/14), para 37–40.

62 Garib, para 126, 157.

63 See n. 9–11

64 The rationalistic strand insists that only logos and ethos arguments are significant when trying to persuade legal audiences who are conceived of as especially rational, cf. e.g. MacCormick, Rhetoric and the Rule of Law, 2, 14f, 237f, 255, 261, 280; and Alexy, A Theory of Legal Argumentation, Part C. Cf. also Perelman’s ‘New Rhetoric’ and its dialectic aspirations in Perelman et al., The New Rhetoric, 26, 30. A similar stance was characteristic of some members of the ‘School of Mainz’ at its origins, cf. Sobota, ‘System and Flexibility in Law’, 276.

65 Marks, ‘False Contingency’, 20f; Kennedy, A Critique of Adjudication, 288f, 293f.

66 David Kennedy, ‘Challenging Expert Rule: The Politics of Global Governance’, Sydney Law Review 27, no. 1 (2005): 21–8.

67 Keren Wang, Legal and Rhetorical Foundations of Economic Globalization: An Atlas of Ritual Sacrifice in Late-Capitalism (Routledge, 2020), 10 et seq.

68 See n. 7–11. Rationality in this sense means less than logical entailment, but more than coherence (as in MacCormick, Rhetoric and the Rule of Law, 189 et seq.). It relates to the ‘logic of situations’ that derives from the basic semantic wholeness that produce social meaning and allows us to make sense of social phenomena where human purpose and intentionality play a significant role, Unger, Law in Modern Society, 246–56.

69 Note that one of the central features of proportionality doctrine is that rights are not conceived of as entitlements, but as principles that express individuals’ legitimate interests or positions that must be optimised as far as the circumstances allow, see e.g. Alexy, Theorie der Grundrechte, 100 et seq., 163 et seq.

70 Garib, para 142.

71 Ibid., para 142, 159.

72 Peck, Constructions of Neoliberal Reason, 223.

73 Brown, Undoing the Demos, 37, 40–1; Dardot et al., The New Way of the World, 100; Harvey, A Brief History, 60–1

74 Brown, Undoing the Demos, 132–3; Dardot et al., The New Way of the World, 167–8, 180–9; Harvey, A Brief History, 48, 76, 80–1.

75 Brown, Undoing the Demos, 38; Harvey, A Brief History, 85. See also M.C. Arkins and B.E. French, ‘Demolition, Division and Displacement: Examining the Preservation of Whiteness in Rotterdam Municipal Housing Policy’, Critical Sociology 50, no. 1 (2024): 107–24.

76 Harvey, A Brief History, 79f; Ian Bruff ‘The Rise of Authoritarian Neoliberalism’, Rethinking Marxism 26, no. 1 (2014): 113–29.

77 Brown, Undoing the Demos, 210 et seq.

78 Ibid., 215–6; Wang, Legal and Rhetorical Foundations, 121–2.

79 Wang, Legal and Rhetorical Foundations, 122.

80 Ibid., 127–32.

81 Ibid., 133–4.

82 Ibid., 135.