Academic

Zucca on Monism & Fundamental Rights

By Lawrence Solum

Lorenzo Zucca (King's College London School of Law) has posted Monism and Fundamental Rights in Europe and Beyond on SSRN. Here is the abstract:

Fundamental Rights are increasingly better protected thanks to several different layers of protection afforded by national, supranational and international judicial bodies. Yet, the likelyhood of discrepancies between the solutions reached by those bodies opens the whole practice to a number of problems and risks. Legal Pluralist claim that the risk of conflicting views should not be regarded as a problem, and should instead be regarded as an occasion to engage in a dialogue between various jurisdictions.

In this article I resist the legal pluralist claim and suggests that the only way of understanding the relationship between fundamental rights and law is monist. That said, there are two opposite monist understandings of the same relationship. On the one hand, there is a value monist which argues for the unity of law and morality at the moral level. On the other hand, there is a legal monist perspective, which argues for the unity of legal norms alone and claims that disagreements about fundamental rights are settled by competent institutions within the monist legal framework. I defend the latter monist position above the former and suggests that that is best way of understanding law and fundamental rights at the national, supranational and international level.

Full post as published by Legal Theory Blog on January 08, 2011 (boomark / email).