Constitutional Dilemmas: Conflicts of Fundamental Legal Rights in Europe and in the USA

The following is an abstract of my Ph.D. Thesis, which I will defend on 23 May 2005 at the European University Institute, Florence.

When Fundamental Legal Rights conflict with one another, as for example free speech v privacy or life v autonomy, we are left with no guidance as to what to do. I call these cases constitutional dilemmas. These are characterised by deep disagreement as to who is best placed to decide them and as to how such issues should be decided. Moreover, constitutional dilemmas involve a deadlock: there is agreement that a solution cannot be found without sacrificing one or the other fundamental legal right at stake.

Constitutional dilemmas are a potential threat to the unity and cohesion of a society and of a legal system. The sxistence of persistent disagreement, coupled with the existence of a deadlock, may provoke a breakdown in communication between two opposing parties. The opposition between pro-life and pro-choice parties in abortion cases provides but one illustration of a failure to succesfully resolve arguments over a pressing social issue.

An ideal society would not allow for the proliferation of conflicts. In other words, the overall objective of the constitution of any society, as much as the constitution of the human body, is to find harmony between all of its constitutive parts. In an ideal situation, we could perhaps all agree on what we take to be an harmonious society. However, in a liberal, pluralistic, society, the challenge of any given conception of harmony is a necessary feature of any evolving community. And that is probably the very core of liberty, and its paradox.