The Anatomy of Conflicts of Fundamental Legal Rights
The Anatomy of Conflicts of Fundamental Legal Rights
This chapter attempts to grasp the central case of such conflicts, thereby coming up with a distinction between genuine and spurious conflicts. It is argued that legal systems, despite strong assumptions of coherence, display a number of normative inconsistencies which crop up when fundamental rights are instantiated in actual cases. The intensity of a conflict depends on the kind of incommensurability between opposite claims and on the moral residue left by the process of adjudication. Incommensurability may be weak, thereby leaving the door open to qualitative comparison, but it also may be radical, leaving no options to the adjudicator. A typology of genuine conflicts of fundamental rights is presented in order to illuminate their great variety.
Keywords: normative inconsistencies, incommensurability, comparison, moral residue, sacrifice, genuine conflicts, typology of conflicts
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