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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 1 00-Zucca-Prelims.qxd 10-06-2008 05:27 PM Page iv 3 Great Clarendon Street, Oxford OX2 6DP Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide in Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries Published in the United States by Oxford University Press Inc., New York © Lorenzo Zucca, 2007 The moral rights of the author have been asserted Database right Oxford University Press (maker) Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland First published 2007 First published in paperback 2008 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this book in any other binding or cover and you must impose the same condition on any acquirer British Library Cataloguing in Publication Data Data available Library of Congress Cataloging in Publication Data Zucca, Lorenzo. Constitutional dilemmas: conflicts of fundamental legal rights in Europe and the USA/Lorenzo Zucca. p. cm. Includes bibliographical references and index. ISBN–13: 978–0–19–920497–7 1. Civil rights—Europe—Philosophy. 2. Civil rights—United States— Philosophy. I. Title K3240. Z83 2007 342.08′5—dc22 2007013085 Typeset by Newgen Imaging Systems (P) Ltd., Chennai, India Printed in Great Britain on acid-free paper by Biddles Ltd., King’s Lynn, Norfolk ISBN 978–0–19–920497–7 (Hbk.) ISBN 978–0–19–955218–4 (Pbk.) 1 3 5 7 9 10 8 6 4 2 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.

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