Law, Morality, and Conflicts of Fundamental Legal Rights

Lorenzo Zucca

in Constitutional Dilemmas

Published in print July 2008 | ISBN: 9780199552184
Published online January 2009 | e-ISBN: 9780191709630 | DOI:
 Law, Morality, and Conflicts of Fundamental Legal Rights

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This chapter deals with the central problem concerning conflicts of rights: both parties have an exclusive claim to something of value protected by a fundamental right and we are left with no guidance on how to solve the clash. There is not only disagreement, but also a deadlock as both claims are rationally defensible. In other words, the adjudicator faces a dilemma, which cannot be solved in a way that avoids the loss of something of value. To cope with this issue, some suggest that fundamental rights are principles and not rules and as such they can be weighed when in conflict. It is argued instead that fundamental rights are broad permissive rules. As a consequence of such a conception of fundamental rights, the role played by morality in shaping the answer to dilemmas is narrowed down. Ultimately, to deny that genuine conflicts of rights exist is incompatible with a strong understanding of fundamental rights and with value pluralism.

Keywords: dilemmas; rules; principles; value pluralism

Chapter.  12243 words. 

Subjects: Constitutional and Administrative Law

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