Libertarian easements revisited

In the present paper, I develop further my original argument for extending the Blockian Proviso to landlocked property. I use Walter Block’s newest rejoinder as an opportunity to generalize my case for necessity easements. I argue that in order to attenuate various conflicts of rights, libertarianism should interpret its thesis that property rights are absolute in a less demanding way.

Broken Cisterns

This chapter focuses on one aspect of Britain's contemporary legal culture: the rise of rights-based discourse. It argues that by framing their cases as conflicts of rights, the Christian Legal Centre (CLC) aims to undermine the universalism of human rights language. By constructing themselves as a marginalised counterpublic whose rights are frequently 'trumped', they hope to convince their fellow Britons that a society built upon the logic of competing rights cannot hope to deliver human flourishing. By contrast, only a society based on the foundational Truths of the Bible can achieve the utopian vision sought after by rights proponents. The chapter concludes that although the CLC has been successful in highlighting the inconsistency of human rights idealism, the use of rights-based claims to undermine a rights-based legal framework leaves them open to the charge that they are reinforcing the very system they hope to challenge.

Balancing in the GDPR

This chapter takes a step back and looks at fair balancing acts induced by invoking the right to erasure. It starts with comparing balancing of fundamental rights and freedoms in the Charter with balancing in the GDPR. Indeed, it re-emphasizes how the GDPR as a whole, essentially constitutes a framework for fair balancing of rights, freedoms, and interests in the context of personal data processing. The chapter then lays out the actual blueprint for such fair balancing in the GDPR. It becomes clear how fair balancing in the GDPR is an iterative process, with ex ante and ex post balancing acts. The former need to be performed before processing initiates, and the latter refer to subsequent balances as triggered by data subject rights for example. Overall, the very nature of fair balancing does not allow for clear-cut, categorical answers to conflicts of rights, freedoms, and/or interests. Instead the GDPR should be looked at as defining the basic infrastructure for ensuring fair balancing, further to be refined by relevant stakeholders. This can notably happen through standards or certification mechanisms, guidance by authorities, and by controllers themselves.

Normative and Institutional Dimensions of Rights’ Adjudication Around the World

The implications of incommensurability for rights’ adjudication tend to be overlooked in much of contemporary constitutional theory. This paper criticizes the dominant “one right-answer” approach to conflicts of rights, and develops an alternative approach that is better suited to constitutional rights’ adjudication in contemporary pluralistic legal orders. It is submitted that the normative reasons for having courts undertake the value-choices implicit in constitutional rights’ adjudication, and for preferring certain legal methodologies over others, must reflect the role of courts in resolving social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. It is further argued that any theory that builds from this approach needs to answer two inter-related questions: when is constitutional rights’ adjudication by courts appropriate, and how rights’ adjudication should be pursued.

To Discriminate in Order to Fight Discrimination

This chapter analyses arguments regarding conflicts of rights in the field of antidiscrimination law, which is a troublesome and less studied area of the growing literature on conflicts of rights. Through discussion of Ladele and McFarlane v. The United Kingdom, a case before the European Court of Human Rights, the chapter examines how the construction of this kind of controversy in terms of ‘competing rights’ or ‘conflicts of rights’ seems to produce paradoxical results. Assessment of these apparent difficulties leads the discussion in two different directions. On the one hand, some troubles come to light regarding the use of the conflict of rights frame itself in the field of antidiscrimination law, particularly in relation to the main technique (‘balancing of rights’) to solve them. On the other hand, some serious consequences of the conflict of rights frame on the development of the antidiscrimination theory of the ECtHR are unearthed.

Introduction—Conflicts of Rights in Theoretical and Comparative Perspective

This introductory chapter frames the book’s debate by delineating the extent of persistent reasonable disagreement on both the existence and resolution of human rights conflicts in the context of the European Convention on Human Rights. Drawing on the core arguments of the book’s substantive chapters, the introduction highlights the central cleavages in the debate. The chapter first discusses arguments deployed to deny the very existence of conflicts of rights, as well as available counterarguments. It goes on to provide insight in different strategies aimed at minimizing the occurrence of conflicts. It finally suggests that the resolution of genuine human rights conflicts runs along four axes: balancing versus non-balancing; compromise versus winner-take-all; ad hoc balancing versus definitional balancing; and substantive reasoning versus procedural checks. Where useful, the chapter provides linkages to broader scholarly and judicial debates by accentuating relevant theoretical approaches and comparative materials.

Law, Dilemmas, and Happy Endings

Genuine conflicts of rights imply a choice between two valuable goods and an inevitable sacrifice as a consequence. In Evans v. The United Kingdom the choice was between imposing fatherhood on one of the parties or denying biological motherhood to the other. The case was presented as a dilemma, and this chapter suggests a cautious approach to the resolution of dilemmas. In medical ethics, technological advancements largely determine the range of options open to individuals. Medical progress is so fast that a dead end one day can become an opportunity the next. This reshapes the choices individuals have and ultimately dispels the necessary choice between options that seemed to lead to a sacrifice of value. This chapter argues that given the state of incessant medical progress, it is fundamental that the law refrains from coercing either party to do something without their consent.