Lorenzo Zucca (King’s College London) has posted Monism and Fundamental Rights in Europe. Though the piece does not directly reference or discuss cases of religious liberty in Europe (nor, curiously, Isaiah Berlin for that matter), the application of the author’s approach to such questions should be evident. Among other reasons, I am posting the piece because it represents a point of view nearly diametrically opposed to the one that I defend in my forthcoming book, Tragedy and History: The Quality of Religious Liberty. The abstract follows. — MOD
Fundamental Rights in Europe are protected by national, supranational and international judicial bodies. Yet, the likelihood of discrepancies between the solutions reached by those bodies opens the whole practice to a number of problems and risks. Legal Pluralists 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. There are two opposite monist understandings of the same relationship. On the one hand, there is a value monist approach which argues for the unity of value across law and morality. On the other hand, there is a legal monist perspective, which argues for the unity of legal norms and claims that disagreements about fundamental rights are settled by competent institutions within the monist legal framework. I defend the latter legal monist position and suggests that that is the best way of understanding law and fundamental rights at the national, supranational and international level.