The Doctrine of 'Implied Limitations' of Fundamental Rights: An Argument Against Legal Paternalism

7 Pages Posted: 1 Jun 2015

See all articles by Enrico Bertrand Cattinari

Enrico Bertrand Cattinari

Università degli studi di Modena e Reggio Emilia (UNIMORE)

Date Written: June 1, 2015

Abstract

What kind of paternalism is compatible with a legal system that recognizes the fundamental rights of the human person? Is it consistent with the basic principles of such a legal system to restrict a fundamental right for a reason other than ensuring a fundamental right of another person?

According to the thesis of “implied limitations” of fundamental right, the only permissible legal limitations to human rights are those necessary for their existence as a whole. Fundamental right are inherently limited from the outset, as, if they were not restricted, they could not exist together.

In many cases, legal limitations to individual freedom are imposed based on needs that do not seem related to a specific duty of responsibility towards others. However, that should be considered admissible only insofar these limitations does not restrict fundamental right. The concept of “implied limitations” is a consequence of the inviolability of fundamental right.

Inviolability concerns the system of fundamental right as a whole and not any fundamental right, separately considered. If the fundamental right could be restricted for reasons other than their overall protection – for example for a generic social benefit or a collective interest, even if relevant – they would no longer be inviolable.

Keywords: paternalism, fundamental rights, human rights, responsibility towards others

Suggested Citation

Bertrand Cattinari, Enrico, The Doctrine of 'Implied Limitations' of Fundamental Rights: An Argument Against Legal Paternalism (June 1, 2015). University of Leicester School of Law Research Paper No. 15-18. Available at SSRN: https://ssrn.com/abstract=2612894

Enrico Bertrand Cattinari (Contact Author)

Università degli studi di Modena e Reggio Emilia (UNIMORE) ( email )

Viale A. Allegri 9
42121

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