Abstract
The comment consists of two parts. In the first part, I will challenge, on analytical grounds, Sampaio’s views on the kind of conflict that emerges between fundamental rights norms. I will claim that these conflicts can in fact be seen as total-total in abstracto conflicts, rather than partial-partial in concreto conflicts. In the second part, I will set forth a normative thesis advocating a possible alternative way of solving conflicts between fundamental rights norms which rests heavily on the legal system’s institutional history as the necessary, although not sufficient, criterion for giving precedence to one of the conflicting fundamental rights norms.
This article is a comment on “Proportionality in its narrow sense and measuring the intensity of restrictions on fundamental rights” by Jorge Silva Sampaio.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Similar content being viewed by others
Notes
- 1.
However, Sampaio concedes that there can also arise total-partial conflicts between fundamental rights norms (2018, p. 79, n. 47).
- 2.
Decision of the Constitutional Court of the Republic of Croatia, U-I-4537/2013 and U-I-4686/2013 of 21 April 2015.
- 3.
Although it seems that Sampaio’s example on p. 85 instantiates the total-total conflict (between human dignity and the right to life with regard to the conduct ‘shooting down an airplane’).
- 4.
One could object that this method deprives the constitutional court of its reformatory potential, its roles of the guardian of the constitution and protector of the citizens’ fundamental rights and that it shifts the authority to decide conflicts among fundamental rights to the legislator. However, while in systems of a priori constitutional review such an objection definitely misses its target, in systems of a posteriori constitutional review the court always has the opportunity to declare existing legislation unconstitutional and consequently not to consider it when determining the legal system’s overall institutional history of potential conflicts between the constitutional norms in question.
References
Decision of the Constitutional Court of the Republic of Croatia, U-I-4537/2013 and U-I-4686/2013 of 21 April 2015
Guastini R (2011) Interpretare e argomentare. Dott. A. Giuffrè editore, Milano
Ross A (1958) On law and justice. Stevens & Sons Limited, London
Sampaio JS (2018) Proportionality in its narrow sense and measuring the intensity of restrictions on fundamental rights. In: Duarte D, Sampaio JS (eds) The principle of proportionality in law: an analytical perspective. Springer, Dordrecht, pp. 71–110
Zucca L (2008) Conflicts of fundamental rights as constitutional dilemmas. In: Brems E (ed) Conflicts between fundamental rights. Intersentia, Antwerp, pp 19–37
Author information
Authors and Affiliations
Corresponding author
Editor information
Editors and Affiliations
Rights and permissions
Copyright information
© 2018 Springer International Publishing AG, part of Springer Nature
About this chapter
Cite this chapter
Burazin, L. (2018). Conflicts Between Fundamental Rights Norms. In: Duarte, D., Silva Sampaio, J. (eds) Proportionality in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-89647-2_5
Download citation
DOI: https://doi.org/10.1007/978-3-319-89647-2_5
Published:
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-89646-5
Online ISBN: 978-3-319-89647-2
eBook Packages: Law and CriminologyLaw and Criminology (R0)