Abstract
Fundamental rights are born in the form, width, and with the limits that the constitution gives them. Concretely, in single laws and in concrete situations, every right claimed by one person is limited by the other rights and rights of others. In concrete situations, two or more rights cannot be satisfied at the same time; systemic and coherent protection can be given by reasonably balancing interests in the resolution of a specific conflict. As far as health protection is concerned, proportionality assessments are based primarily on the use of the precautionary principle and the determination of the so-called acceptable risk threshold. The aim of the contribution is therefore to illustrate the techniques of balancing interests in the field of health protection with particular focus on the Italian constitutional order.
TopConflicts Between Rights And Balancing
As stated by the Italian Constitutional Court in its first judgment, n.1 of 1956, in a general way, the rule which confers a right does not exclude the regulation of the exercise of it. A regulation of the methods of exercising a right, so that the activity of a person aimed at the pursuit of his own objectives is compatible with the pursuit of the objectives of other persons, would not be considered in itself a violation or denial of the right. And even if someone would think that from the discipline of exercise can also indirectly derive a certain limit to the right itself, it should be remembered that the concept of limit is inherent in the concept of right and that in the context of the legal system the various juridical ‘spheres’ must necessarily limit each other, so that they can coexist in the orderly civil coexistence. Thus, rights are born in form and scope and with the limits that the Constitution gives them;
The limits of a right can be classified as follows:
However, the protection of rights must always be systemic and not divided into a series of uncoordinated rules that are potentially in conflict with each other. If this were not the case, there would be the unlimited expansion of one of the rights, which would become a “tyrant” in relation to the other constitutionally recognized and protected juridical situations, which constitute, as a whole, an expression of the dignity of the person.
The implementation of the system of rights in the legal system and especially in the Constitution follows a very precise logic:
- 1.
Identification in the Constitution of the typical hypothesis of the object of protection, ('head' of law).
- 2.
Identification in the Constitution of the typical hypothesis of counter-interest, ('internal' limit).
- 3.
Development of discipline in other sources and, in particular, in ordinary legislation ('body’ of law) and balance with other rights or interests (so-call 'external' limits).
As for health protection, it can be said that the 'head' and the typical counter-interest are indicated in the text of art. 32 Cost, while the 'body' is found e.g. in l. 132/1968 (so-called hospital law), in law 833/1978 (establishment of the National Health Service), in law 119/2017 (mandatory vaccinations).
The right to health, pursuant to Article 32 of the Constitution, in fact, it has at least 4 dimensions (Bartole-Bin 2008)
- 1.
Negative claim that public authorities or individuals refrain from conducts that could affect their physical integrity.
- 2.
Positive demand for the public authorities to provide facilities, therapeutic means and free treatment for the most deprived.
- 3.
Negative claim not to be forced to undergo certain health treatments beyond those of a mandatory nature.
- 4.
Collective claim that each individual has care of his health in order not to cause damage to the psycho-physical integrity of other members of the community.
In the abstract, rights do not conflict. The Constitution sets out in absolute terms the rights and interests it recognises and protects and does not offer an unambiguous solution to the problems of reconciliation between them. It sets the “tolerance limits” with which the various legislative choices have to deal. (Onida 1988)
However, rights do not live in isolation, but they are in a situation of potentially continuous conflictual interaction. In such situations, two or more rights cannot be met at the same time, and traditional antinomies resolution criteria (chronology, hierarchy, specialty) cannot be used. The purpose of balancing is to reach a solution to a specific conflict between rights and/or interests that has manifested itself in a concrete case. (Pino 2010, 187)
Traditionally, conflict hypotheses are classified as follows:
Key Terms in this Chapter
Principle of Reasonabless: The principle of reasonabless requires that the legislative provisions are adequate or congruent with the Objectives pursued by the legislator.
Legislative Competences: In the Italian constitutional order, legislative competence is divided between the State and the Regions according to the matters. Article 117 of the Constitution establishes three types of legislative competences. 1) Exclusive competence of the State: only the State can enact laws in those matters; 2) Competitors: The laws of the State establish the fundamental principles of the matter, the regional laws establish the detailed rules; 3) Residual of the Regions: it is up to the Regions in all matters not expressly reserved to the legislation of the State.
Right to Health: In the Italian Constitution (art. 32) the right to health establishes that the Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent. No one may be obliged to undergo any health treatment except under the provisions of the law. The law may not under any circumstances violate the limits imposed by respect for the human person.
Principle of Proportionality: The principle of proportionality prescribes the adequacy between means and aims in the exercise of normative powers.
Balancing: Technique to reach a solution to a specific conflict between rights and/or interests that has manifested itself in a concrete case.
Loyal Collaboration: Requires that the different levels of government that are part of a legal system (e.g., State and Regions, Member States, and EU) must cooperate with each other in view of the interweaving of competences.
Precautionary Principle: The precautionary principle can be invoked when a phenomenon, a product or a process can have potentially dangerous effects, identified through a scientific and objective evaluation, if this evaluation does not allow to determine the risk with sufficient certainty.