RUDN Journal of Law (Dec 2017)
THE PROBLEM OF JUSTICIABILITY OF HUMAN RIGHTS IN SITUATIONS OF THEIR COMPETITION AND THE PRINCIPLE OF PROPORTIONALITY
Abstract
When discussing justiciability of human rights in a situation of their competition two questions are of fundamental importance. The first concerns those factors which are able, at least, complicate jus-ticiability of the situation of fundamental rights competition. The author comes to the conclusion that various ideological patterns and values, relevant experience of which is able to polarize the society (in-cluding the judiciary), standing behind the different understanding of human rights are the factor that problematizes justiciability of competing rights and impedes rational, claiming to be generally signifi-cant, reasoning of the judgment. That’s why crucial second - methodological - question associated with the search for adequate tools of constitutional interpretation that would minimize the costs of in-volvement of the constitutional justice in the sphere of political discourse assumes importance. Considering the problem of justiciability of human rights and constitutional principles as their normative basis in its methodological aspect, the author concludes that within the framework dictated by the principle of proportionality of logic “weighing” the competing rights their legal nature trans-forms so that they were convenient for carrying the “weigh in”. According to the author, the logic of “weighing” could lead to a paradox: human rights are important only insofar as subject to restriction - a conclusion that radically changes the focus on the legal nature of fundamental rights. The article pre-sents critical arguments against the position of normative dualism between norms-rules and norms-principles that makes the “weigh” possible. The author proposes to consider the legal principles, from the standpoint of the textual expressions’ peculiarities of their normative nature in the constitutional acts, as a categorical (unconditional) norms of the high degree of abstraction, having entitle-binding na-ture. Rights and duties relevant to legal principles are absolute (unconditional) in the sense that they are not associated with any of the legal facts, but only with the very existence (existentia) of a person. Discussing possible methodological alternatives to the principle of proportionality, the author comes to the conclusion that the development of this methodology must be started from the normative - not the teleological - nature of the constitutional principles (fundamental rights).
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