Are fundamental principles somehow flexible? The challenge of legal pluralism and cultural diversity
DOI:
https://doi.org/10.4013/rechtd.2015.72.02Abstract
In this paper I will try to demonstrate why and how a hermeneutical approach, based on a more flexible interpretation of fundamental rights, can be useful to accommodate cultural differences and at the same time preserve a societal cohesion around basic values. My approach is not alternative, but additional to the more classical policies based on group rights and on individual rights, and it is a system of legal interpretation somehow similar to the margin of appreciation doctrine, which the European Court of Human Rights adopts in its case law to balance the enforcement of rights and national traditions. I argue that it should be possible, even within a single state, to allow restrictive interpretations of Constitutional principles in a way that limits their goals and validity, in order to balance them with the right to cultural identity.
Keywords: pluralism, group rights, multiculturalism, interpretation, margin of appreciation.
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