Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and the USA

196 Pages·2008·1.542 MB·English

by  Lorenzo Zucca

Constitutional Dilemmas
Conflicts of Fundamental Legal Rights
in Europe and the USA

Constitutional Dilemmas
Conflicts of Fundamental Legal Rights in
Europe and the USA
LORENZO ZUCCA
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Zucca, Lorenzo.
Constitutional dilemmas: conflicts of fundamental legal rights in Europe and
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1. Civil rights—Europe—Philosophy. 2. Civil rights—United States—
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Acknowledgments
This work is a revised version of my PhD, which I defended at the European
University Institute, Florence in May 2005. In the course of preparing this study
of fundamental legal rights I have become indebted to numerous people who have
helped me in many ways. The European University Institute provided an idyllic
place for writing my PhD. In short, I think it is the best place to embark on the
writing of a dissertation. Professors, researchers, administrators, and librarians
have been extraordinarily helpful. In particular I wish to thank Wojciech Sadurski
for his supervision and friendliness, and Neil Walker for believing in researchers,
and supporting them in all their initiatives. Outside the Institute, my greatest
debt is to Otto Pfersmann who was (literally) there wherever I went, be it Paris,
Oxford, Florence, or New York. I benefited greatly from the discussions we had.
Finally, my thanks go to Stephen Perry who kindly accepted the invitation to be a
member of the panel that examined my thesis and provided very thoughtful
comments.
While in Florence, I had the opportunity to present my ideas and discuss them
with various friends. At the European University Institute I would like to thank all
of those who attended the weekly sessions of the legal theory discussion group. It
is impossible to mention all of the people who attended, however it is possible to
recall how it all began. Euan MacDonald, Georg Sommeregger, Srdjan Cvijic,
Raphael Paour and I met in the beautiful countryside of Fiesole to discuss our
embryonic ideas. We continued our exchanges up until the delivery of this book.
Since moving to Aberdeen, Scotland, I have had the chance to test my ideas
with my students in a seminar on theories of rights. They all responded enthusias-
tically and provided very interesting insights. I thank them all. Also, I thank
Derek Finchman for proofreading the whole manuscript.
I want to express my gratitude to Rebecca Smith and Fiona Stables at OUP for
their assistance, and to Caryn Maclean, whose editorial work on the manuscript
was impeccable.
My family and friends deserve my special thanks. Bertone, Biagio, Chris, Ellie,
Giovanni, Giuseppe, Evelyn, Javier, John, Osla, Paolo, Peter, Silvia, Tobias, and
Balazs (with his gulash) have been there all along, and their presence was invalu-
able. My final thanks go to my parents, Grace and Hercules.

Introduction
When Fundamental Legal Rights (FLRs) conflict with one another we are left
with no guidance. I call these cases constitutional dilemmas. These are character-
ized by deep disagreement over who should decide such issues, and in what man-
ner. Moreover, constitutional dilemmas involve a deadlock where a solution
cannot be found without sacrificing one or the other FLR at stake.
Constitutional dilemmas are a potential threat to the unity and cohesion of a
society and of a legal system. The existence of persistent disagreement, coupled
with the existence of a deadlock, may provoke a breakdown in communication
between two opposing parties. The opposition between pro-life and pro-choice
parties in abortion cases provides one illustration of a failure to successfully deal
with a pressing social issue.
In response to such problems, constitutional rights theorists have argued either
that dilemmas do not resist closer inspection or that there is a procedure that can
maximize the protection of FLRs, while minimizing their sacrifices. Those
espousing the former strategy commonly believe in the possibility of ‘right
answers’ for each and every problem; those preferring the latter argue that the
results of any such conflict can be optimized through balancing the rights.
The question that underlies this book is the following: is it possible to solve
genuine conflicts of FLRs? In order to come up with an answer, I had to define
more precisely what such a conflict is, and then analyse how legal systems respond
to them. In other words I ask both a conceptual and a practical question. The con-
ceptual question—what is a conflict of FLRs?—examines the conditions under
which disagreements over rights claims become genuine conflicts of FLRs. The
practical question—how do legal systems deal with genuine conflicts of FLRs?—
examines the possibility of setting up institutions and procedures that are tailored
to make the issue of such conflict more manageable.
That said, it is surprising to note that this issue has rarely been discussed either
at the domestic or international level.¹Legal scholarship on FLRs has focused on
other issues. For instance, in the UK the question of the horizontal effect of rights
occupies a great deal of attention. The same applies when we examine the work of
international courts, such as the European Convention on Human Rights. One
commentator has noted the following: ‘Very little has been written on the proper
¹ The same point is raised by Helen Fenwick, ‘Clashing Rights, the Welfare of the Child and the
Human Rights Act’, (2004) 67(6) MLR 889–927. Fenwick concludes her piece by noting that: ‘the
article’s concern has been to make a contribution to the current debate just beginning to get under
way as to the approach that should be taken under the HRA to certain clashes of Convention right.’
See also Shazia Choudry and Helen Fenwick, ‘Taking the Rights of Parents and Children Seriously:
Confronting the Welfare Principle under the Human Rights Act’ (2005) 25 OJLS 453–92.
x Introduction
domestic approach to clashes of Convention rights. Indeed, this topic is also
neglected in relation to the Convention itself’.²
Rights theorists have written on this issue, albeit as a side issue rather than a
central one. Authors engaged in the debate between interest—and will-based
theories of rights, for example, have sometimes dealt with the question of rights
conflicts.³However, such an issue is mainly used by one side of the debate to illus-
trate the failures of the other. Hence, on the one hand, the interest theory is
accused of seeing conflicts everywhere, thereby de facto demeaning the impor-
tance of clashes of rights. On the other, the will theory is accused of defining away
conflicts by shaping the domain of rights in a very rigid way.
The primary goal of this book is to place the problem of conflicts at the centre
of the theory, and practice, of Fundamental Legal Rights. This is not merely an
abstract question. On the contrary, I believe that some of the most important
issues that divide our societies relate to conflicts of FLRs. For instance, the vexed
question of physician-assisted suicide could be framed as a conflict between the
FLR to life and the FLR to decisional privacy. Therefore, understanding how to
deal with such conflicts allows us to delve more deeply into some of the basic
problems that we face collectively, and to measure the strengths and weaknesses of
rights discourse within constitutional democracies.
In other words, the point of this book is to demonstrate that genuine conflicts
of FLRs cannot be avoided or defined away; they are unavoidable. This means that
adjudication in these matters necessarily imposes sacrifices and losses on the part
of one or both right-holders, or the state as a party to the conflict.⁴
The conflict of FLRs’ issue is important because it stands at the crossroad of
different enquiries related to theories of rights. Hence, the problems of the source
of rights, their limits, their interpretation, and adjudication based thereon are
brought together in an effort to understand the relations between them, rather
than postulating the overarching importance of one over the others. Many
authors argue that the problem of the source of rights—where do rights come
from?—is the most important issue from which we can derive all the remaining
answers.⁵Such a claim, however, is something that I intend to reject in the course
of this book.
From this point of view, the extent to which FLRs conflict obviously depends
on the underlying conception of FLRs that one adopts. This, however, does not
mean that we can boil down every question to a conceptual/definitional problem
as to what is the best conception of rights. If one adopts a dynamic conception of
² Helen Fenwick (n 1 above) 889.
³ Matthew Kramer, Nigel Simmonds, and Hillel Steiner, A Debate about Rights (Oxford:
OUP,1999).
⁴ This, in turn, may suggest that the juridification of moral dilemmas in terms of fundamental
legal rights may not be necessarily desirable. This point goes beyond the scope of this book which is
primarily concerned with the issue of unavoidability of genuine conflicts of fundamental legal rights.
⁵ Alan Dershowitz, Rights from Wrongs—A Secular Theory of the Origins of Rights(New York: Basic
Books, 2004) see also MJ Perry, Toward a Theory of Human Rights, (Cambridge, Mass: CUP, 2007).
Introduction xi
FLRs—a conception that regards the demands made by such rights as constantly
expanding—then conflict will be omnipresent. If, on the other hand, one adopts a
static conception of FLRs—one that regards their function as the protection of
discrete types of actions—then the possibility of conflict will be notably reduced,
although not eliminated entirely. I will try to move away from both the dynamic
and the static conceptions, offering an alternative definition of the concept in
chapter 2, which rests on the idea that FLRs determine a constitutional status of
individuals. Such a conception is not exclusively dynamic because the constitu-
tional status is determined by a number of fixed properties (eg some basic interests
of the individual). Yet it is not purely static either, as the strength of the protection
offered by the constitutional status depends on the way each individual decides to
use it in order to protect/promote himself.⁶
The discourse of rights hardly acknowledges that there may be a dark side to
rights-based adjudication. Generally it is widely argued that the expansion of
FLRs is highly desirable, if not a necessary condition of human development.
Hence rights are often used to define political affiliations in an extremely carica-
tured fashion: rights’ expansion is associated with liberals, while rights’ contrac-
tion is typically understood as conservative. A deeper understanding of conflicts
illustrates that the previous characterization is simplistic; liberals, for instance, are
bound to favour a contraction of at least one FLR in the case of conflict. The prob-
lem, therefore, is not so much how to expand/contract FLRs, but instead how to
adjudicate conflicting claims.⁷
Some believe that to devote too much energy to the issue of conflict of FLRs is a
waste of time; instead, rights activists argue, one should spend time thinking how
to expand their reach in Western democracies, and propagate them in countries
inwhich these standards are not met. I think, on the contrary, that to understand
the deepest problems related to FLRs could help shape better policies both in coun-
tries in which respect of rights is highly developed, and in those in which it is less so.
For a genuine questioning of the limits may help us move beyond a type of ‘faith’
taking for granted that the only progressive direction is that of expansion of FLRs.
Our experiences show us that FLRs sometimes expand and sometimes contract
depending on a range of circumstances. For a couple of decades (from the begin-
ning of the 1960s until the end of the 1990s) human rights discourse enjoyed con-
siderable success both at the theoretical and practical levels. Some authors referred
to it as ‘the age of rights’.⁸Nowadays rights are under considerable strain, primarily
⁶ From this perspective, the constitutional status theory attempts to merge the insights of both
interest and will theories of rights. The result, however, is meant to be a distinct theory of fundamen-
tal legal rights.
⁷ To suggest that dilemmas related to rights should be dealt with by another institution than the
judiciary (eg the legislature) does not solve the problem of conflict of rights. Parliaments, like courts,
do not have the epistemic resources to deal with dilemmas in a satisfactory way. In fact, parliaments
tend to avoid those problems as often as possible.
⁸ Norberto Bobbio, L’eta’ dei diritti(Torino: Einaudi, 1990). Louis Henkin, The Age of Rights
(New York: Columbia UP, 1990).
xii Introduction
due to the international political situation that takes the war on terrorism as an
overarching policy objective. That primacy serves as a justification to limit domes-
tic liberties, as the Patriot Act did in the USA.
I submit that a proper grasp of the notion of conflicts between FLRs may also
serve to dispel confusion as to the limitations of such rights themselves. To begin
with, it is important to draw a basic distinction between conflicts of rights proper,
and clashes between utilitarian concerns and such rights. A proper understanding
of the issue of conflicts is necessary in order to shed some light on how we limit
FLRs, both on the basis of rights-based arguments (internal grounds) and in terms
of utilitarian concerns (external grounds). Dworkin’s conception of rights as
trumps is an illustration of that confusion. Dworkin defines rights as trumps over
utility, thereby inescapably tying together rights and utility. Such a conception,
however, leaves no room for the possibility of conflicts that postulate the existence
of two non-utilitarian arguments opposing each other.
The notion of conflicts of FLRs is very broad; thus some points are in order to
set the limits of the study. This book is not about rights in general, and it is not
about moral or legal rights in particular. It is about FLRs as a specific type of rights.
FLRs are general rights in that they embed valid claims, or liberties, on the part of
the individuals. FLRs are legal rights to the extent that they are encapsulated in
broad rules that have a legal significance (eg bills of rights). FLRs are fundamental
rights as they protect certain fundamental aspects of the life of right holders.
More specifically, this book departs from the majority of other works in this
field in the following ways:
First, I do not attempt to provide an explanation of the language of rights in every
instance, as many theorists in search of a unitary foundation of rights do. Rights are
used in almost every legal and political fora and they generally designate a simple
claim or a liberty on the part of the right-holder. FLRs confer upon the right-holder
a special constitutional status, which allows him to challenge unfavourable legisla-
tion. FLRs are thus important from both substantive and procedural viewpoints.
Substantively, they single out a mini-sovereignty for individuals. Procedurally, they
guarantee that a proper separation of powers is enforced.
Second, I do not claim to explain what rights we ought to have from a moral
point of view. This book does not attempt to give a list of moral rights that we have
independent from the fact that we live in a given community. FLRs are considered
as special legal devices protecting very important aspects of one’s beliefs, thoughts,
and actions. However, the list of those FLRs is determined by contingent, local
arrangements.
Third, I distinguish between spurious and genuine conflicts of FLRs.⁹ In this
book I am only interested in the latter. I offer my own explanation of what consti-
tutes a genuine conflict in relation to the concepts of normative inconsistencies,
and legal trade-offs. A normative inconsistency arises when a legal system
⁹ See ch 3.