ABSTRACT
This chapter outlines the decision problem that the Court faces in a number of hard cases. These involve human rights review of state measures emerging through complex patterns of institutional interaction at the domestic level. The chapter also outlines a number of constraints that limit the epistemic capacity of the European Court of Human Rights (ECtHR) and can spawn uncertainty about the correct outcome. The difficulty specifically stems from the combination of complexity with limited epistemic resources. The chapter claims that, under circumstances of uncertainty, consensus can best be understood as a reasoning strategy, not as a criterion of truth about European Convention of Human Rights. It suggests that, qua reasoning strategy, the consensus approach could perhaps be best understood and assessed as a collective intelligence device. Using complexity theory to show that, despite initial appearances, the moral reading of the Convention could be compatible with the consensus approach is an interesting result in itself.
