Conflicts between Absolute Rights: A Reply to Steven Greer

This is an Author’s Original Version of an article published by Oxford University Press in Human Rights Law Review (2013), DOI: 10.1093/hrlr/ngt020

31 Pages Posted: 18 Jul 2017

Date Written: April 10, 2013

Abstract

Can absolute rights conflict? Is it permissible to torture a person to save others from torture? And what can Judges learn from trolleys? In this article, presented as a reply to an article by Steven Greer, I investigate the above questions in the context of the case law of the European Court of Human Rights. Drawing on Gäfgen v Germany, I construct a hypothetical case of conflicting absolute rights, which cannot be resolved by the existing strands of legal reasoning in the case law of the Court. Instead, I argue, recourse must be had to moral reasoning. In discussing one of moral philosophy’s deepest conundrums – the Trolley Problem – I rely on the distinction between negative and positive obligations and between direct and indirect agency to unravel the dilemma. Translating the moral argument into legal reasoning, I conclude that in cases of conflicts between absolute rights, negative obligations principally trump positive obligations.

Keywords: absolute rights, conflict of rights, European Court of Human Rights, Gäfgen v Germany

Suggested Citation

Smet, Stijn, Conflicts between Absolute Rights: A Reply to Steven Greer (April 10, 2013). This is an Author’s Original Version of an article published by Oxford University Press in Human Rights Law Review (2013), DOI: 10.1093/hrlr/ngt020, Available at SSRN: https://ssrn.com/abstract=2999519

Stijn Smet (Contact Author)

Hasselt University ( email )

Campus Hasselt
Martelarenlaan 42
Hasselt, 3500
Belgium

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