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Article

Конфликт прав как риторическая антиномия

When judges adjudicate the cases in the light of national constitutions or the ECHR, they often deal with the conflict of individual rights and have to make the ‘balancing exercise’ to justify their choice in favour of one of them.  Different methodologies can be applied to investigate the problem why judges make different choices when they counter-balance seemingly the same rights under similar provisions. In the present article the attempt is made to apply the methodology of new rhetoric, elaborated by Perelman and Olbrechts-tyteca. Legal positivism cannot provide the answer, how the choice is made if the conflicting rights belong to the same level in hierarchy of legal sources. This issue lies rather in the realm of rhetoric than in the domain of legal theory, because the ‘preferable’, ‘choice’ and ‘adherence’ are rather philosophical than legal terms and relate to values and hierarchies. Arguments in law, according to Perelman, are rhetorical by nature and decision-making in law is based on rhetorical demonstration, not on the principles of formal logic. The choice between two lines of arguments is always a value-choice, and can be grounded in public opinion as well as in moral choices of the judges. The conflicting values can be considered as a rhetorical antinomy, which should be resolved. The antinomy is defined as mutual incompatibility of two laws, provisions or legal arguments, which can be equally justified as valid and applicable. From the rhetoric point of view, different outcomes to which the judges of national or international courts arrive in the process of applying the same provisions to the same facts, can be to a large extent explained by the fact, that though they share the common values, they build them differently into hierarchies and assign them different weight in their value-systems.  The analysis of two decisions – in Konstantin Markin Case and Nikolay Alekseyev Case, which provoked academic debate among Russian constitutional lawyers and judges - justifies this thesis. It also enables to identify the ways in which rhetorical antinomies in human rights cases are being resolved by the Russian Constitutional Court and the ECtHR.