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

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This book 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 book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and ...
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Overview


This book 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 book is that much can be learned about the nature of fundamental legal rights by examining them through the lens of conflicts among such rights, and criticizing the views of scholars and jurists who have discussed both fundamental legal rights and the nature of conflicts among them.

Theories of rights are necessarily abstract, aiming at providing the best possible answers to pressing social problems. Yet such theories must also respond to the real and changing dilemmas of the day. Taking up the problem of conflicting rights, Zucca seeks a theory of rights that can guide us to a richer, more responsive approach to rights discourse.

The idea of constitutional rights is one of the most powerful tools to advance justice in the Western tradition. But as this book demonstrates, even the most ambitious theory of rights cannot satisfactorily address questions of conflicting rights. How, for instance, can we fully secure privacy when it clashes with free speech? To what extent can our societies assist people in dying without compromising the protection of life? Exploring the limitations of the rights discourse in these areas, Zucca questions the role of law in settling ethical dilemmas helping to clarify thinking about the limitations of rights discourse.

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Editorial Reviews

From the Publisher

"Lorenzo Zucca has written an excellent book. It is a deep contribution to the analysis of dilemmas in the field of constitutional law."
--Guillermo Lariguet, King's Law Journal, 2009

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Product Details

  • ISBN-13: 9780199552184
  • Publisher: Oxford University Press
  • Publication date: 9/15/2008
  • Pages: 208
  • Product dimensions: 6.00 (w) x 9.10 (h) x 0.50 (d)

Meet the Author

Lorenzo Zucca was appointed Lecturer in Law at King's College London after studying at the European University Institute (Florence), the University of Oxford, and the University of Paris.

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Table of Contents

Introduction ix

Part I The Theory of Conflicts of Fundamental Legal Rights

1 Law, Morality, and Conflicts of Fundamental Legal Rights 3

1 The Dilemma 3

2 The Structure of FLRs' Norms: Rules v Principles 7

3 Weighing Principles in Competition: Harmony or Conflict? 12

4 Conflicts of FLRs: From Morality to Law 23

5 Conclusion 25

2 The Concept of Fundamental Legal Rights 27

1 FLRs and Analysis 27

2 A Preliminary Problem: Reductionism 27

3 The Structure and Point of Rights 29

4 The Scope (or Content) of FLRs 42

5 The External Dimension or the Function(s) of FLRs 45

6 FLRs: A Stipulative Definition 47

3 The Anatomy of Conflicts of Fundamental Legal Rights 49

1 Introduction 49

2 Lato Sensu and Spurious Conflicts of FLRs 49

3 The Core of Conflicts of FLRs 52

4 Theories of Rights, Normative Inconsistencies, and Incommensurability 55

5 Beyond Absolute or Prima Facie FLRs 60

6 A Typology of Conflicts of FLRs 64

4 A Framework to Deal with Conflicts of Fundamental Legal Rights 67

1 Why a Framework? 67

2 Conflicts and the Constitution 68

3 Interpretation and Conflicts of FLRs 74

4 Deference and Conflicts of FLRs 79

5 Balancing and Conflicts of FLRs 84

6 The Rule of Conflict as the Ultimate Rule of Law 90

Part II The Practice of Conflicts of Fundamental Legal Rights

Introduction 97

5 The Fundamental Legal Right to Privacy 99

1 Privacy: An Ambiguous Concept 99

2 The Structure of the FLR to Privacy 101

3 The Legal Protection of the FLR to Privacy 107

4 Conflicts and the FLR to Privacy 112

6 The Fundamental Legal Right to Informational Privacy v The Fundamental Legal Right to Free Press 114

1 Introduction114

2 Situating the Conflict 115

3 Solving the Conflict? 131

7 Mortal Conflicts of Fundamental Legal Rights-The Fundamental Legal Right to Life v The Fundamental Legal Right to Decisional Privacy 142

1 Introduction 142

2 Physician-assisted Suicide Around the World 145

3 The Anatomy of a FLRs Conflict 148

4 Moral and Legal Conflicts 156

5 Whose Tragedy Is It? 160

6 Present Solutions: How do Courts Solve the Conflict? 162

7 Accepting or Imposing Sacrifices 166

8 Conclusion 168

Bibliography 171

Index 179

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