Rights as Trumps and Balancing: Reconciling the Rreconcilable?

Abstract

There appears to be a widespread assumption among those who defend balancing in constitutional rights that it is incompatible with the idea of rights as trumps, because public interests and constitutional rights are to be balanced without any type of pre-fixed priority or lexical ordering. My purpose in this article is to show that both trumping and balancing are not only compatible, but possibly complementary. What i will argue is that it is not only possible to have a workable arrangement of constitutional rights that incorporates both trumping and balancing, but it is also better and more plausible if we have one.

Collision of Fundamental Human Rights and the Right to Health Access During the Novel Coronavirus Pandemic

“…At the other side of the current approach of this research, hard decisions in which fundamental law principles that contain the fundamental rights of people collide, Ronald Dworkin sets the problem assuring that rights only apparently collide because constitutional rights, at his notion, are neat and clear concepts that need to be known by the interpreter, from a point of view of the internal theory, without external influence of other fundamental rights, according to the concept that the principles are found in their internal content ( 4 , 33 ).…”

“…But Dworkin accepts the balancing and weighting of the interests involved in such cases, but in a hidden way, with justification deficiency to the theory ( 33 ). At his side, Robert Alexy delivered an interpretation of law rules and principles, and in his conception of these optimization commandments (constitutional principles), from an external theory, it is necessary to balance and weigh principles and assume rights collisions, in a construction of a well-accepted technique to solve collision of rights and principles in court and state decisions ( 4 , 33 , 34 ).…”