Conflicts between Absolute Rights: A Reply to Steven Greer
Year: 2013
Type: article
Abstract: Can absolute rights conflict? Is it permissible to torture a person to save others from torture? And what can judges learn from trolleys? In this article, presented as a reply to an article by Steven Greer, I investigate the above questions in the context of the case law of the European Court of Human Rights. Drawing on Gäfgen v Germany, I construct a hypothetical case of conflicting absolute rights, which cannot be resolved by the existing strands of legal reasoning in the case law of the Court. Instead, I argue, recourse must be had to moral reasoning. In discussing one of moral philosophy’s deepest conundrums—the Trolley Problem—I rely on the distinction between negative and positive obligations and between direct and indirect agency to unravel the dilemma. Translating the moral argument into legal reasoning, I conclude that in cases of conflicts between absolute rights, negative obligations principally trump positive obligations.
Source: Human Rights Law Review
DOI: 10.1093/hrlr/ngt020
Author: S. Smet
Institution: Ghent University
Language: English
Subfield: Law
Field: Social Sciences
Domain: Social Sciences
Open Access status: green
OpenAlex ID: W2153728070