Naslov
Solving Conflicts between Constitutional Rights

Autori
Burazin, Luka

Vrsta, podvrsta i kategorija rada
Sažeci sa skupova, neobjavljeni rad, znanstveni

Skup
Fundamental Rights - Justification and Interpretation

Mjesto i datum
Beograd, Srbija, 24.10.2014

Vrsta sudjelovanja
Pozvano predavanje

Vrsta recenzije
Međunarodna recenzija

Ključne riječi
fundamental rights, conflicts of norms, balancing, lex specialis

Sažetak
The prevailing view is that normative conflicts between constitutional rights (qua legal principles) can arise only in concreto. It is also often assumed that the conflict can only be of a partial-partial nature, which, in turn, calls for the balancing of rights as the appropriate way of solving the conflict. However, since the process of constitutional rights' concretisation results in the making of implicit legal rules (with closed antecedents), the paper argues that there is at least a conceptual or logical possibility of a total- partial conflict between constitutional rights. The paper further argues that, if this is true, the judge, in cases where such a conflict arises, uses, in fact, the criterion of specialty in order to solve the conflict. Finally, the paper argues that even when it comes to the partial-partial conflict between principles, it is not balancing (especially not the balancing of the underlying values of the conflicting rights) what is used to solve the conflict, but the determination of which of the conflicting implicit legal rules has a better justification in a legal system's institutional history.

Izvorni jezik
Engleski

Znanstvena područja
Pravo

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