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
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