2015년 5월 31일 일요일

[발췌: András Sajó's] Abuse: The Dark Side of Fundamental Rights (2006)

출처: András Sajó ed. ^Abuse: The Dark Side of Fundamental Rights^. Eleven International Publishing. 2006.
자료: 구글도서


※ 발췌 (excerpt):
* * *

András Sajó

Preface


Fundamental rights have their dark side.[n.1] The darkness results from the abuse of fundamental rights in the public sphere. The problem of abuse in the present volume is very different from what is commonly understood as 'abuse of human rights' where authorities violate fundamental rights by simply denying them. The present concern is that even in democratic states, authorities and individuals claim human (fundamental) rights and the rule of law in ways that violate the fundamental rights of other people. In consequence of such actions, justice is denied. These consequences are often international or at least results from gross disregard that seems to raise issues of responsibility. For example, the rule of law is used to protect wealth amassed in more than dubious ways. Gianluigi Palombella argues that
the perspective of the abuse of powers or rights teaches us that we cannot just simply obey the formalism of the rule of law: not because it prevents justice in the single case, but rather because such formalism may not be able to control the 'legalistic' abuse of power that could lie concealed in it.
In other instances, reference to the public welfare serves to suppress fundamental individual rights; government authorities claim powers as their right in order to subvert the established balance of powers and move towards more arbitrary action and despotism.
[n.1] Earlier versions of the papers collected in this volume were presented in Budapest in 2005 at the 13th '^The Individual v. the State^' Conference. The conference was hosted by the Central European University, Legal Studies Department. The OpenSociety Institute, Budapest, provided generous funding for the conference. Special thanks are due to Zsuzsaa Kovacs and Lorri Bentch for editorial support. All quotes in the text of the Preface come from the respective chapters in this volume.
  Of course, as Martin Krygier reminds us, abuse of the rule of law and of rights cannot be addressed without asking what the rule of law and fundamental rights for. "[M]any things besides the law matter, and since societies differ in many ways, so will those things. So a universal, institution-based definition of the rule of law is implausible─and it will often mislead, it might well lead us away from the rule of law." Likewise, a concept of abuse of rights must be context-bound. In this regard, Andras Sajo discusses the historical transformations of abuse of rights, and Zdenek Kuhn's analysis of Polish court decisions adopted at the beginning of the communist dictatorship demonstrates that the road to tyranny leads through the abusive presentation of rights.

  These problems are not consistently reflected in constitutional law and in the jurisprudence of constitutional rights. Is there a doctrinal answer, a category that would capture these problems? Are these problems to be treated within the existing doctrinal categories, or would a doctrine of abuse of rights in constitutional and international law help in clarifying improper use of rights and the rule of law? Or, perhaps, most of the abuses are simply individualistic and narrow the social construction of needs and claims of justice in terms of individual rights.

  Most contributors to this volume are inclined to admit that in certain circumstances fundamental rights are used improperly, with troubling consequences, and that making us aware of such improprieties is necessary for the most efficient and just operation of the constitutional system. Beyond that agreement, the positions are divided.  

( ... ... )

댓글 쓰기