The subject of this thesis are apparent conflicts between fundamental rights, which represent one of the most important problems contemporary legal systems are faced with. More specifically, this thesis presents and analyses different legal methods that have been suggested as answers to the problem. Contemporary constitutions usually contain provisions protecting certain fundamental rights, such as the right to life, the right to privacy, the right to freedom of expression, personality rights, the right to health, etc. The problem can arise when two (or more) provisions protecting fundamental rights are relevant to the specific situation. The question can then arise: should the behaviour be permitted or prohibited? Judges may then be faced with the situation of having to decide the case without any explicit or clear guidance on how to decide the case. In such situations, lex superior, lex posterior and lex specialis are usually inapplicable, because the provisions regulating fundamental rights are usually on the same hierarchical level, were enacted at the same time and no general – special relationship can be established between them. The problem is further complicated by the fact that the norms expressing fundamental rights are generally understood as legal principles, supposedly different from legal rules. These cases are commonly referred to and known in the literature as hard cases. In order to decide such cases and solve the problem we are faced with various legal methods have been proposed. These methods represent possible answers to the problem of the resolution of the apparent conflicts between fundamental rights. The term “apparent” is used, since there is a debate regarding the existence of “real” conflicts between fundamental rights. The objective of the thesis is to provide an answer to the research question: What are the legal methods of resolving apparent conflicts between fundamental rights and what are their merits in comparison to each other? In order to answer the research question, different legal methods that have been suggested as an answer to the problem of apparent conflicts between fundamental rights are presented, analysed and compared. In this way, the thesis aims to contribute to the understanding of the strengths and weaknesses of the different legal methods that have been proposed to solve the problem. To achieve this, the thesis is divided into three main chapters, each of which presents and analyses different legal methods on apparent conflicts between fundamental rights. In Chapter I and Chapter II, the main legal method proposed to resolve apparent conflicts between fundamental rights – judicial balancing – is presented and analysed. In Chapter III, alternative, non-balancing legal methods for resolving apparent conflicts between fundamental rights are presented and analysed. Chapter I presents and analyses Alexyan theory of judicial balancing, developed by Robert Alexy and further refined by his disciples Jan-Reinard Sieckmann, Martin Borowski and Matthias Klatt. Chapter II presents and analyses approaches from Aharon Barak, Manuel Atienza, José Juan Moreso, Riccardo Guastini and Susan Lynn Hurley. In Chapter III, alternative, non-balancing legal methods for resolving apparent conflicts between fundamental rights are presented and analysed. The authors whose approaches are analysed and presented in this chapter are, in this order: Ronald Dworkin, Luigi Ferrajoli, Juan Antonio García Amado, Lorenzo Zucca and Ruth Chang.

Legal methods for resolving apparent conflicts between fundamental rights

KERSIC, MARIN
2022

Abstract

The subject of this thesis are apparent conflicts between fundamental rights, which represent one of the most important problems contemporary legal systems are faced with. More specifically, this thesis presents and analyses different legal methods that have been suggested as answers to the problem. Contemporary constitutions usually contain provisions protecting certain fundamental rights, such as the right to life, the right to privacy, the right to freedom of expression, personality rights, the right to health, etc. The problem can arise when two (or more) provisions protecting fundamental rights are relevant to the specific situation. The question can then arise: should the behaviour be permitted or prohibited? Judges may then be faced with the situation of having to decide the case without any explicit or clear guidance on how to decide the case. In such situations, lex superior, lex posterior and lex specialis are usually inapplicable, because the provisions regulating fundamental rights are usually on the same hierarchical level, were enacted at the same time and no general – special relationship can be established between them. The problem is further complicated by the fact that the norms expressing fundamental rights are generally understood as legal principles, supposedly different from legal rules. These cases are commonly referred to and known in the literature as hard cases. In order to decide such cases and solve the problem we are faced with various legal methods have been proposed. These methods represent possible answers to the problem of the resolution of the apparent conflicts between fundamental rights. The term “apparent” is used, since there is a debate regarding the existence of “real” conflicts between fundamental rights. The objective of the thesis is to provide an answer to the research question: What are the legal methods of resolving apparent conflicts between fundamental rights and what are their merits in comparison to each other? In order to answer the research question, different legal methods that have been suggested as an answer to the problem of apparent conflicts between fundamental rights are presented, analysed and compared. In this way, the thesis aims to contribute to the understanding of the strengths and weaknesses of the different legal methods that have been proposed to solve the problem. To achieve this, the thesis is divided into three main chapters, each of which presents and analyses different legal methods on apparent conflicts between fundamental rights. In Chapter I and Chapter II, the main legal method proposed to resolve apparent conflicts between fundamental rights – judicial balancing – is presented and analysed. In Chapter III, alternative, non-balancing legal methods for resolving apparent conflicts between fundamental rights are presented and analysed. Chapter I presents and analyses Alexyan theory of judicial balancing, developed by Robert Alexy and further refined by his disciples Jan-Reinard Sieckmann, Martin Borowski and Matthias Klatt. Chapter II presents and analyses approaches from Aharon Barak, Manuel Atienza, José Juan Moreso, Riccardo Guastini and Susan Lynn Hurley. In Chapter III, alternative, non-balancing legal methods for resolving apparent conflicts between fundamental rights are presented and analysed. The authors whose approaches are analysed and presented in this chapter are, in this order: Ronald Dworkin, Luigi Ferrajoli, Juan Antonio García Amado, Lorenzo Zucca and Ruth Chang.
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Utilizza questo identificativo per citare o creare un link a questo documento: https://hdl.handle.net/11567/1097198
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