Finding hidden patterns in ECtHR’s case law
| DOI | 10.1177/1358229117693715 |
| Author | Aysel Küçüksu,Henrik Palmer Olsen |
| Published date | 01 March 2017 |
| Date | 01 March 2017 |
| Subject Matter | Articles |
Article
Finding hidden patterns
in ECtHR’s case law:
On how citation network
analysis can improve our
knowledge of ECtHR’s
Article 14 practice
Henrik Palmer Olsen
1
and Aysel Ku
¨c¸u
¨ksu
2
Abstract
This article is concerned with identifying how contemporary data technology can be
used to find and analyse the big amount of case law generated by international courts in a
more comprehensive way than that achieved through the traditional manual reading of
case law at the core of textbook or doctrinal analysis of judgements. The focus of the
article is the European Court of Human Rights (ECtHRs) and its Article 14 þ2 case law,
which is studied through the tools of citation network analysis. The resulting findings are
then compared to a standard textbook approach in order to show how citation network
analysis offers a reliable method in selecting cases for qualitative analysis and drawing
information relevant to specific legal issues. The article proposes and eventually advances
a new approach to legal research, which integrates quantitative network analysis with
qualitative legal (doctrinal) analysis, and shows how this form of analysis enables a study
of case law through the recognition of patterns within it that would have otherwise been
difficult to identify. Using this approach to advance new insights into the prohibition of
the article ultimately offers a new instrument for scholars and practitioners to put into
use when considering the future narrative of discrimination law.
1
Centre of Excellenc e for the Study of Inter national Courts (iCo urts), The Faculty o f Law,
University of Copenhagen, Copenhagen, Denmark
2
University of Geneva, Switzerland and LUISS-Guido Carli, Italy
Corresponding author:
Henrik Palmer Olsen, University of Copenhagen, Copenhagen 13626, Denmark.
Email: henrik.palmer.olsen@jur.ku.dk
International Journalof
Discrimination and theLaw
2017, Vol. 17(1) 4–22
ªThe Author(s) 2017
Reprints and permission:
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DOI: 10.1177/1358229117693715
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Keywords
European Court of Human Rights, international courts, case law, network citation
analysis, discrimination, European Convention on Human Rights article 14 þ2,
quantitative research methods
Introduction
International courts are increasingly seen as active agents, which do more than simply
apply the law
1
– they shape the law through their decisions. In an international law
environment, where basic treaties do not change much over time, the courts’ decisions
as patterns of precedent hold the key to understanding the law. In this article, we are
concerned with identifying how contemporary data technology can be used to find and
analyse this caselaw in a more comprehensive way than what can beachieved through the
traditional manual reading of case law that usually lies behind textbook or doctrinal
analysis of the mostrecent and most talked about judgements. We shall do so by focusing
on the European Court of Human Rights (ECtHR) and more specifically, with a starting
point in some observations we have made regardinga dimension of its Article 14 case law.
Our double aim is to (1) introduce the tools of citation network analysis to the study of
the case law of courts (here, the ECtHR) and compare this to a standard textbook
approach and (2) show how citation network analysis, if used as an approach to selecting
cases for qualitative analysis, can reveal new information – both factual and legal – about
the Court’s case law; information that is relevant to specific legal issues. In short we
propose and eventually advance a new a pproach to legal research, which integ rates
quantitative network analysis with qualitative legal (doctrinal) analysis, and we show
how this can be used to advance new insights into the prohibition of discrimination under
Case citation network analysis
Method and significance
In legal research, citation network analysis can be used to identify the structure of the
whole body of case law (or that part of it which is of interest to researchers), and it may
be used to compute how cases cluster together by sharing citations or how specific cases
refer to the overall network, groups (clusters) in the network, or to some selected cases.
This information may be used to hypothesize about how the law has developed and may
even give clues as to how it will do so in the future. The units of case citation network
analysis (the ‘dots’ in Figure 1 below, also called ‘nodes’ or ‘vertices’) are cases (judge-
ments), and the connections between them (called ‘edges’ or ‘arcs’ represented by lines
in Figure 1 below) are citations. Together they form an interlocked construction, which is
an idea that intuitively resonates with the way many lawyers (practitioners as well as
legal scholars) think about the law: as a settled web of norms.
2
For instance, Figure 1
presents a small network of cases from the ECtHR.
Olsen and Ku
¨c¸u
¨ksu 5
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