Cultural Rights and the Margin of Appreciation Doctrine: A Legal Tool for Balancing Individual Rights and Traditional Rules

Abstract

The aim of this article is to suggest a way forward for conflicts between individual rights and group rights, and between policies of equality and policies of difference. I propose a strategy to deal with problems of recognition, by establishing a legal mechanism in which powers and responsibilities are shared by the group and the state. This strategy does recognize the importance of the subsidiarity principle, and it is based on the European Court of Human Rights (ECtHR)’s margin of appreciation doctrine. This approach aims to combine respect for fundamental rights with the defense of a group’s identity, by allowing group representatives a wider margin of interpretation in constitutional rights enforcement. At the same time, I argue that this perspective may be a judicial mechanism to encourage groups to gradually develop their traditions, and to update them to constitutional standards.