¹ For a discussion of conflict norms see Peczenik, A, On Law and Reason (Springer, Heidelberg, 2009) 342CrossRefGoogle Scholar. See Hage, J, Studies in Legal Logic, Law and Philosophy Library (Springer, Dordrecht, 2005) 94.Google Scholar

² Arguing that there is a general lack of literature on the topic see Brems, E, Conflicts between Fundamental Rights (Intersentia, Antwerp, 2008) 1.Google Scholar

³ See Brems, E, ‘Conflicting Human Rights: An Exploration in the Context of the Right to a Fair Trial in the European Convention for the Protection of Human Rights and Fundamental Freedoms’ (2005) 27 Human Rights Quarterly 304–5.Google Scholar

⁴ On the traditional requirements for allowing a limitation of legality, legitimacy of aim, proportionality and necessity in a democratic society see Mégret, F, ‘Nature of Obligations’ in Moeckli, D, Shah, S and Sivakumaran, S (eds), International Human Rights Law (Oxford University Press, Oxford, 2010) 141–3.Google Scholar

⁵ But see the section of this article titled ‘Conflicts: real or illusory?’ below.

⁶ Cf Von Hannover v Germany (Merits), Application no 59320/00, ECHR Judgment of 24 June 2004.

⁷ Cf Gäfgen v Germany (Merits and Just Satisfaction), Application no 22978/05, ECHR Judgment of 1 June 2010 [Grand Chamber].

⁸ See Waldron, J, ‘Rights in Conflict’ (1989) 99 Ethics 506CrossRefGoogle Scholar, 510. This theoretical point seems to be widely accepted in international human rights law through the recognition of positive and negative duties in the case law of the European Court of Human Rights, the adoption of Henry Shue’s tripartite typology of duties to respect, protect and fulfil at the UN level and at the African Commission on Human Rights as well as the recognition made by the Inter-American Court of Human Rights that Article 1 includes negative duties (respect) and positive duties (ensure).

⁹ On this characterization see Steiner, H, An Essay on Rights (Blackwell, Oxford, 1994) 2–3Google Scholar and ‘The Structure of a Set of Compossible Rights’ (1977) 74 The Journal of Philosophy 767–8.

¹⁰ See Williams, B, ‘A Critique of Utilitarianism’ in Smart, JJC and Williams, B (eds), Utilitarianism: For and Against (Cambridge University Press, Cambridge, 1998) 98–9.Google Scholar

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¹² See Hage, J ‘Rule Consistency’ (2000) 19 Law and Philosophy 376.Google Scholar

¹³ This view of permission as free choice resembles that of the concept of ‘indifference’ in Soeteman, which clashes with both something being mandated, and something being prohibited (and with the absence of a norm). See Soeteman, A, Logic in Law: Remarks on Logic and Rationality in Normative Reasoning, Especially in Law (Kluwer, Dordrecht, 1989) 173, 317.CrossRefGoogle Scholar

¹⁴ Liberty rights in international human rights law will never be mere permissions; they will never be fully devoid of duties for the state. See Hart, HLA, Essays on Bentham (Clarendon, Oxford, 1982) 172.Google Scholar

¹⁵ On the existence of these sorts of positive duties see Plattform ‘Ärzte für das Leben’ v Austria (Merits), Application no. 10126/82, ECHR Judgment of 21 June 1988.

¹⁶ There is an important discussion on the notion of impossibility in von Wright, GH, Norm and Action: A Logical Inquiry (Routledge, London, 1963), 48–51Google Scholar. It is necessary to note that how strong a notion of impossibility is going to be adopted by a legal system is a significant substantive question.

¹⁷ See Hage (n 12) 374, 376.

¹⁸ See for instance Steiner, ‘The Structure of a Set of Compossible Rights’ (n 9) 769. This is also Robert Nozick’s position. See also Vizard, P, Poverty and Human Rights: Sen’s ‘Capability Perspective’ Explored (Oxford University Press, Oxford, 2006), 32–5Google Scholar. For a revisionist critique of the existing international human rights catalogue, using inter alia a requirement of ‘practicability’ which is close to the notion of co-possibility used here, see generally M Cranston, ‘Are There Any Human Rights?’(1983) 112 Daedalus 1–17.

¹⁹ See Steiner, An Essay on Rights (n 9) 225.

²⁰ Ibid 204: ‘The demand for respect for (compossible) rights is always equal to our ability to supply it.’

²¹ The idea that even negative rights require positive duties to be meaningful is extensively developed in Holmes, S and Sunstein, CR, The Cost of Rights: Why Liberty Depends on Taxes (Norton, New York, 1999).Google Scholar

²² Expressing similar concerns see Waldron (n 8) 504. Consider in this light the affirmation of the preamble of the Vienna Declaration and Program of Action that ‘all human rights derive from the dignity and worth inherent in the human person, and that the human person is the central subject of human rights and fundamental freedoms’.

²³ See Rawls, J, Justice as Fairness: A Restatement (Belknap, Cambridge, 2001) 112–13.Google Scholar

²⁴ See Gutmann, A (ed), Human Rights as Politics and Idolatry (Princeton University Press, Princeton, 2003) x.Google Scholar

²⁵ See Nickel, JW, Making Sense of Human Rights (Blackwell, Malden, 2007) 7.Google Scholar

²⁶ On the expansive nature of human rights in the international see Alston, P, ‘Conjuring up New Human Rights: A Proposal for Quality Control’ (1984) American Journal of International Law 78 (1984): 609–11.CrossRefGoogle Scholar

²⁷ Consider point 5 of the Vienna Declaration and Program of Action: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’

²⁸ See Christoffersen, J, ‘Impact on General Principles of Treaty Interpretation’ in Kamminga, M and Scheinin, M (eds), The Impact of Human Rights Law on General International Law (Oxford University Press, Oxford, 2009), 44–6.Google Scholar

²⁹ See ibid, 47–50.

³⁰ See Scheinin, M, ‘Human Rights Treaties and the Vienna Convention on the Law of Treaties: Conflict or Harmony?’ in Venice Commission The Status of International Treaties on Human Rights (Council of Europe, Strasbourg, 2006) 48–50.Google Scholar

³¹ See Mégret (n 4) 141–3.

³² See K Boyle, ‘Though, Expression, Association and Assembly’ in Moeckli, Shah and Sivakumaran (eds) (n 4) 259–60

³³ This has been called ‘simple’ or ‘unrestrained’ balancing. See Novak, M, ‘Three Models of Balancing (in Constitutional Review)’ (2010) 23 Ratio Juris 106CrossRefGoogle Scholar. But it is better to see this as a general mode of reasoning, than as a method for solving conflicts of rights.

³⁴ The original quote goes as follows: ‘Were our understandings of judicial review not affected by the mystique surrounding Marbury v. Madison, it might be more readily recognized that a surprising amount of what passes as authoritative constitutional ‘interpretation’ is best understood as something of a quite different order – a substructure of substantive, procedural, and remedial rules drawing their inspiration and authority from, but not required by, various constitutional provisions; in short, a constitutional common law subject to amendment, modification, or even reversal by Congress’ Monaghan, HP, ‘The Supreme Court 1974 Term. Foreword: Constitutional Common Law’ (1975) 89 Harvard Law Review 2–3Google Scholar. On decision rules as such – and making reference to the text quoted from Monaghan – see Berman, MN, ‘Constitutional Decision Rules’ (2004) 90 Virginia Law Review 4.CrossRefGoogle Scholar

³⁵ See Peczenik (n 1) 99–100.

³⁶ For a discussion of hierarchy in Constitutional Law of Italy and Germany, that has some affinities to the present discussion, see Pino, G, ‘Conflitto e Bilanciamento tra Diritti Fondamentali. Una Mappa dei Problemi’ (2007) 28 Ragion Pratica 236–40.Google Scholar

³⁷ See Boyle (n 32) 266.

³⁸ Cf Pretty v. The United Kingdom (Merits), Application no. 2346/02, ECHR Judgment of April 29, 2002. Although the conflict with the right to life is not explicitly played out in this case, the United Kingdom does suggest that under the right to life there might be a positive obligation to force-feed prisoners against their will (para 36).

³⁹ Consider point 5 of the Vienna Declaration and Program of Action: ‘All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis.’

⁴⁰ See generally Seiderman, ID, Hierarchy in international Law: The Human Rights Dimension (Intersentia, Antwerp, 2001).Google Scholar

⁴¹ See Nowak, M, Introduction to the International Human Rights Regime (Nijhoff, Leiden, 2003) 58.CrossRefGoogle Scholar

⁴² A key proponent of this sort of hierarchy is Professor Theo van Boven. See T van Boven, ‘Categories of Rights’ in Moeckli, Shah and Saivakumaran (eds) (n 4) 181–3.

⁴³ See Seiderman (n 40) 275.

⁴⁴ See Pino (n 36) 239.

⁴⁵ In fact, the same right may conflict with itself in the so called intra-rights conflicts. See Waldron (n 8) 513–14.

⁴⁶ Cf Re A (Children) (Conjoined Twins: Medical Treatment) No 1 [2000] Human Rights Law Reports, 721. Cited in Zucca, L, ‘Conflicts of Fundamental Rights as Constitutional Dilemmas’ in Brems, E, Conflicts Between Fundamental Rights (Intersentia, Antwerp, 2008) 23.Google Scholar

⁴⁷ See Articles 24 and 27 of the Universal Declaration on Human Rights.

⁴⁸ This has also been called categorical balancing. See Novak (n 33) 107.

⁴⁹ Defending the idea that traditional fundamental rights behave in this fashion see Atienza, M and Manero, JR, ‘Sobre Principios y Reglas’ (1991) 10 Doxa 108–10.Google Scholar

⁵⁰ These criteria have been adapted from Alexy’s balancing formula. See Alexy, R, ‘On Balancing and Subsumption: A Structural Comparison’ (2003) 16 Ratio JurisGoogle Scholar. It is an adaptation because Alexy does not support this sort of displacement balancing, but optimization balancing which is addressed below.

⁵¹ Differentiating incommensurability from incomparability see Chang, R ‘Introduction’ in Chang, R (ed), Incommensurability, Incomparability, and Practical Reasoning (Cambridge, Harvard University Press, 1997) 1–2.Google Scholar

⁵² An analogous point is made forcefully by B Williams, who argues that it makes no sense to consider the trades in values that undermine a central element of a person’s life project. In this sense, there may be something objectionable of a judge or citizen that easily contemplates these sorts of trade-offs. See Williams, B, ‘Persons, Character and Morality’ in Moral Luck: Philosophical Papers 1973–1980 (Cambridge University Press, Cambridge, 1981) 13–14Google Scholar, 18. More generally on incommensurability see B Williams, ‘Conflicts of Values’ in ibid 72–3, 77, 80.

⁵³ See García Amado, JA ‘El Juicio de Ponderación y sus Partes. Una Crítica’ en Manrique, Ricardo García, Derechos Sociales y Ponderación (Fundación Coloquio Jurídico Europeo, Madrid, 2007)Google Scholar. See also Tushnet, M, ‘Essay on Rights’ (1984) 62 Texas Law Review 1372–3.Google Scholar

⁵⁴ See Dworkin, R, Taking Rights Seriously (Cambridge, Harvard University Press, 1977) 24.Google Scholar

⁵⁵ See Alexy, R, ‘On the Structure of Legal Principles’ (2000) 13 Ratio Juris 295.Google Scholar

⁵⁶ This is Alexy’s model as presented in Alexy, R ‘On Balancing and Subsumption: A Structural Comparison’ (2003) 16 Ratio Juris 446.Google Scholar

⁵⁷ But Alexy seems to ask us to optimize rights judging their importance from the point of view of the Constitution. See ibid 442.

⁵⁸ See Hart, HLA, ‘Liberty and Its Priority’ (1973) 40 The University of Chicago Law Review 542–7.Google Scholar

⁵⁹ See Alexy (n 55) 295.

⁶⁰ See Gäfgen v Germany (Merits) Application no 22978/05, ECHR Judgment 30 June 2008, para 124.

⁶¹ Alexy, however, seems to believe the opposite, or at least seems to be unduly pessimistic about the flexibility of rules. See Alexy (n 55) 297.

⁶² Optimization balancing in Alexy requires some limited degree of cardinal comparison between principles, and therefore, requires commensurability. This is seen by Alexy’s use of numbers or words like ‘low’, ‘medium’ or ‘high’ for measuring the degree weights of principles in collision. See, for example, Alexy (n 56) 442–3

⁶³ See Peczenik (n 1) 341–2.

⁶⁴ This is discussed in van der Schyff, G, ‘Cutting to the Core of Conflicting Rights: The Question of Inalienable Cores in Comparative Perspective’ in Brems, E (ed), Conflicts between Fundamental Rights (Intersentia, Antwerp, 2008).Google Scholar

⁶⁵ Most would view this as a limitation or an exception of the right to free speech rather than a conflict of rights and this is how these cases are often treated in practice, but this does not detract from an underlying conflict.

⁶⁶ See Pino (n 36) 242–3.

⁶⁷ The strategy of inference from an ideal can also be taken up in a stand-alone fashion, whereas on every decision, the judge simply tries to determine what his view of the grounds of rights entails, but then it would not be a meta-rule approach.

⁶⁸ The main inspiration for the discussion that follows is the method for regulating and restricting rights that is developed in Rawls, J, Political Liberalism (Columbia University Press, New York, 1993)Google Scholar, Lecture VIII (especially 331–40), in response to the challenges made to Rawls’s first principle of justice by HLA Hart. For a similar method applied to conflicts see Serna Bermúdez, P and Toller, F, La Interpretación Constitucional de los Derechos Fundamentales. Una Alternativa a los Conflictos de Derechos (La Ley, Buenos Aires, 2000).Google Scholar

⁶⁹ This vision is invoked by the Strasbourg Court when considering whether a right should be limited.

⁷⁰ This would probably be the ideal that Justice as Fairness would recur to in the case of conflicts of rights. See Rawls (n 68) 335.

⁷¹ The work of M Nussbaum on justice can be seen as parallel to the Rawlsian project in relying on reflective equilibrium, but departing from a thicker, moralized conception of a human being, which includes justice and inclusiveness as ‘ends of intrinsic value’ and ‘views human beings as held together by many altruistic ties as well as by ties of mutual advantage, and views the human person as a political social animal, who seeks a good that is social through and through’. See Nussbaum, M, Frontiers of Justice: Disability, Nationality and Species Membership (Belknap, Cambridge, 2006), 158.Google Scholar

⁷² See Ronald Dworkin (n 54) 22–8.

⁷³ The concept of ideals in Law has been brought forward by W van der Burg and S Taekema. See van der Burg, W, ‘The Importance of Ideals’ (1997) 31 The Journal of Value Inquiry 23–37CrossRefGoogle Scholar and Taekema, S, ‘What Ideals Are: Ontological and Epistemological Issues’ in van der Burg, W and Taekema, S (eds), The Importance of Ideals: Debating Their Relevance in Law, Morality, and Politics (Peter Lang, Brussels, 2004).Google Scholar

⁷⁴ See Telfer, E, ‘The Unity of the Moral Virtues in Aristotle’s Nicomachean Ethics’ (1989–1990) 90 Proceedings of the Aristotelian Society 35–48.Google Scholar

⁷⁵ See Serna Bermúdez and Toller (n 68) 91–4. Specifically, the authors suggest that while rights may seem to conflict when viewed ‘from the ground’, once the perspective of the ‘human person’ which stands as ground for the rights is taken up, the conflicts are resolved.

⁷⁶ See Rawls (n 68) 18.

⁷⁷ Consider that while Rawls attempts to derive his theory from practical reason, he also accepts that ‘reason is not transparent to itself, we can misdescribe our reason as we can anything else’. Consequently, even the basic notions of his theory are subject to reflective equilibrium. See Rawls (n 68) 97. Elsewhere he accepts that even in his constructivist account of justice, not everything can be constructed; ‘we must have some material, as it were, from which to begin’ (104) and these starting points may as well be considered historically motivated. Rawls’s Introduction stresses the relevance of religious conflict in shaping a world where a reasonable pluralism is a social fact (xxiv).

⁷⁸ Rawls derives his starting points from an abstract notion of reasonableness, but another way to look at his method, is to consider that in our present age, reasonable men would agree unanimously to a view of persons as free and equal. A view of ideals that is more explicitly grounded in social reality can be found in Taekema (n 73).

⁷⁹ For exploring this sort of reasoning in relation to the restriction and regulation of rights see Rawls (n 68) 342 ff.

⁸⁰ On this surplus see van der Burg (n 73) 25.

⁸¹ On different degrees of objectivity of ethical judgments see Leiter, B, ‘Law and Objectivity’ in Coleman, J and Shapiro, S (eds), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford, Oxford University Press, 2002) 971Google Scholar. Although Leiter refers to law, not ethics, the categorization he makes is perfectly transposable to ethics and he himself in the cited article makes that jump. For our purposes modest objectivism would be sufficient. Modest objectivism can be defined as the notion that ‘what seems right to cognizers under ideal or appropriate conditions determines what is right’. Note that the modest objectivity does not need to be reached by law by itself (understood as positive law), but that it can be reached by a combination of law and ethical reasoning.

⁸² See Blackburn, S, Ruling Passions (Clarendon, Oxford, 1998) 308.Google Scholar

⁸³ See Rawls (n 68) Lecture III.

⁸⁴ See Railton, Pr, ‘Moral Realism’ (1986) 95 The Philosophical Review 190.Google Scholar

⁸⁵ On the importance of intuitions for testing normative theories see RG Frey, Act-Utilitarianism: Sidgwick or Bentham and Smart? (1977) LXXXVI Mind 95–100. The idea of reflective equilibrium for addressing normative issues was developed in Rawls, J, A Theory of Justice (Belknap, Cambridge, 1999) 18.Google Scholar

⁸⁶ On this view see generally Hage, J, ‘Construction of reconstruction. On the function of argumentation in the law’ in Dahlman, C and Feteris, E (eds), Legal Argumentation Theory: Cross-Disciplinary Perspectives (Heidelberg, Springer, 2013)Google Scholar (in press, manuscript on file with the author).

⁸⁷ See Leiter (n 81) 978: ‘Even those positivists … who deny that morality is ever a criterion of legality may still hold that it is a judge’s duty in exercising discretion in hard cases to reach the morally correct result’.

⁸⁸ See Hart, HLA, The Concept of Law (Oxford, Clarendon, 1994) 126.Google Scholar

⁸⁹ Ibid, 129.

⁹⁰ On this theme see Koskenniemi, M, ‘The Effect of Rights on Political Culture,’ in Alston, P (ed), The EU and Human Rights (Oxford University Press, Oxford, 1999) 107–10.Google Scholar

⁹¹ The work of Bernard Williams can be seen as denunciation of these types of theories. Although he was suspicious of ethics in general, his arguments cut deeper with regard to extreme theories because of their artificiality and remoteness from human motivation. See Williams, ‘Persons, Character and Morality’ (n 51) 13–14, 18.

⁹² See Maritain, J, L´homme Et L´état (Presses Universitaires de France, Paris, 1953) 70.Google Scholar