Editing European Court of Human Rights (section)

===Margin of appreciation===
{{main|margin of appreciation}}
The Court uses the doctrine of [[margin of appreciation]], referring to the member states' rights to set moral standards within reason. Over time, the court has narrowed the margin of appreciation (to the point, according to some commentators, of a "demise" of margin of appreciation).<ref>{{cite journal |last1=Gerards |first1=Janneke |title=Margin of Appreciation and Incrementalism in the Case Law of the European Court of Human Rights |journal=Human Rights Law Review |date=2018 |volume=18 |issue=3 |pages=495–515 |doi=10.1093/hrlr/ngy017|doi-access=free}}</ref> Narrowing margin of appreciation is a target of criticism for those who believe that the ECtHR should minimize its role, especially from the United Kingdom.<ref name=McGoldrick>{{cite journal |last1=McGoldrick |first1=Dominic |title=A Defence of the Margin of Appreciation and an Argument for ITS Application by the Human Rights Committee |journal=International and Comparative Law Quarterly |date=2016 |volume=65 |issue=1 |pages=21–60 |doi=10.1017/S0020589315000457|doi-access=free }}</ref>

Proponents of a stronger recognition of margin of appreciation cite local conceptions of human rights, specific to the context of each country and its culture, and the risk of handing down judgements that lack local cultural and grassroots legitimacy.<ref name=Lemmens>{{cite book |last1=Lemmens |first1=Koen |title=Criticism of the European Court of Human Rights: Shifting the Convention System: Counter-dynamics at the National and EU Level |date=2016 |publisher=Intersentia |isbn=978-1-78068-517-5 |pages=23–40 |chapter=Criticising the European Court of Human Rights or Misunderstanding the Dynamics of Human Rights Protection?}}</ref> Critics argue that the principle of "emerging consensus" of the member states on which the ECtHR operates is fundamentally flawed, because such a consensus often relies on trends, and historically in many instances social and political consensus was retrospectively acknowledged to have been wrong.<ref name="Kleinlein 2017">{{Cite journal|title=Consensus and Contestability: The ECtHR and the Combined Potential of European Consensus and Procedural Rationality Control|first=Thomas|last=Kleinlein|date=13 November 2017|journal=European Journal of International Law|volume=28|issue=3|pages=871–893|doi=10.1093/ejil/chx055|doi-access=free}}</ref>

Such an approach is accused of risking stigmatisation and coercion of the few dissenting countries, encouraging a [[pack mentality]]. Furthermore, critics argue that the EHtCR has claimed that such consensus exists even when objectively it did not, due to the judicial activism of its judges.<ref name="Kleinlein 2017"/> It has been said that in failing to distinctly define how a consensus is reached reduces its legitimacy. Furthermore, as the ECtHR grows, the consensus between the members diminishes.<ref>{{cite journal|doi=10.1093/hrlr/ngu023|last=Roffee |first=J. A. |year=2014 |title=No Consensus on Incest? Criminalisation and Compatibility with the European Convention on Human Rights|journal=Human Rights Law Review |volume=14 |issue=3 |pages=541–572 }}</ref>

However, the margin of appreciation doctrine has also come under sharp criticism from jurists and academics who say that it undermines the universal nature of human rights.<ref name=McGoldrick/>