Colin Matthews Room, Radcliffe Humanities Building
Cecile Degiovanni: 'When Should We Be Able To Waive Our Fundamental Rights?'
Chair: TBD
Abstract: Should you be able to waive your right to life (euthanasia), your right not to be tortured (extreme sado-masochism), your right to a fair trial (plea-bargaining)..? In general, when should you be able to waive your fundamental rights, defined as legal rights entrenched at a constitutional or conventional level? My thesis aims at providing a “Waivability test” lawmakers and citizens could use to address such questions. The chapter I shall present starts by asking why – for whose sake – individuals are given fundamental rights in the first place. It identifies three main options (I). One is to consider fundamental rights as Resources the law gives to individuals in their own interest, for them to use the way they think best. Another is to conceive of fundamental rights as Functions-Rights, akin to the rights granted to civil servants, which would be granted to rights-holders for the sole purpose of fostering collective interests. Yet a third approach consists in seeing fundamental rights as the object of a paid Trust, beneficial both to the trustee (the right-holder) and to a beneficiary (society). The chapter then defends the Trust account (II) and introduces the “Waivability test” it invites us to develop (III).
