Dealing with conflicting fundamental rights is one of the great challenges of any constitutional court and the European Court is no exception. A recent paper offers an intriguing combination of the academic and the insider's perspective. In 'Rights in Conflict: the European Court of Human Rights as a Pragmatic Institution'* law professor Olivier de Schutter (Catholic University of Louvain, Belgium) and Belgian ECHR judge Françoise Tulkens explain and compare the different approaches to the issue. This is (part of) the abstract: Fundamental rights are usually thought of as rules, which prescribe certain arrangements and exclude others; and it is the role of courts, in the traditional view, to expound their significance by applying predefined rules to the facts submitted to them. This view, characteristic of the formalistic conception of law, breaks down most clearly in contexts where one set of facts calls for the application of different rules which are not hierarchically ordered. Such situations oblige us to examine the virtues of a pragmatic conception of legal adjudication, and to explore the procedural implications of such a conception, in which the principles guiding the judicial reasoning are permanently reinvented in the course of their implementation. This paper offers such an examination, by studying the different approaches which have been adopted towards situations where fundamental rights conflict with one another.
* Follow the link look under the heading 'fundamental rights' to download the paper. Many thanks to my friend Jacco Bomhoff (of Comparativelawblog) for pointing out this paper to me.
