Monism and Fundamental Rights<sup>*</sup>

Lorenzo Zucca

in Philosophical Foundations of European Union Law

Published in print October 2012 | ISBN: 9780199588770
Published online January 2013 | e-ISBN: 9780191741029 | DOI:

Series: Philosophical Foundations of Law

Monism and Fundamental Rights*

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There are two opposite ways of conceiving the relationship between law and fundamental rights in a way that makes jurisdictional conflicts manageable. Both ways are monistic, although in a completely different way: one posits the superiority of fundamental rights as moral principles over the law (Moralism). The other claims that fundamental rights should be treated as any other rule, only encapsulating very important interests by way of stipulation (Positivism). Moralism relies on value monism, which maintains that any system of values—including fundamental rights—can be presented as a reduction to the one overarching value that makes the whole morally coherent. Positivism relies instead on a formal understanding of law as a system of rules which are produced, applied, and interpreted according to one single master rule which give unity to the overall framework—what we could call legal monism. Under both these monist views, jurisdictional conflicts are only apparent. Value monism suggests that institutions ought to interpret rights in a coherent and harmonious way. Legal monism, on the other hand, suggests that an appropriately broad view of legal systems would bring about doctrinal unity. This chapter argues that the legal monistic reading is preferable because it is more transparent, more predictable, and mirrors closely the reality of the developing relationship between the European Union and the Council of Europe.

Keywords: EU law; fundamental rights; jurisdictional conflicts; monism; moralism; positivism

Chapter.  12085 words. 

Subjects: EU Law

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