Conflicts of Fundamental Rights as Constitutional Dilemmas
CONFLICTS BETWEEN FUNDAMENTAL RIGHTS, Eva Brems, ed., Antwerp/Oxford/Portland, 2008
54 Pages Posted: 4 Jul 2008
Date Written: July 2, 2008
This paper deals with one of the most important issues of philosophy of law and constitutional thought: how to understand clashes of fundamental rights, such as the conflict between free speech and privacy. The main argument of this paper is that fundamental rights may clash in such a way that no rational solution can be advanced. I call these conflicts 'constitutional dilemmas.' However, we should not despair: when we define precisely what amounts to a genuine conflict of fundamental rights, most of the cases will appear to be spurious conflicts, which can be rationally dealt with.
Keywords: Fundamental Rights, Rights, Balancing, Deference, Incommensurability, Value Pluralism, Legal Philosophy, Constitutional Theory, Conflicts, Law and Morality, Judicial Review, Constitutional Law, Comparative Constitutional Law, Judiciary, right answer, proportionality, basic liberties
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