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The scope and balancing of rights: Diagnostic or constitutive?

Letsas, G; (2011) The scope and balancing of rights: Diagnostic or constitutive? In: Shaping Rights in the Echr: The Role of the European Court of Human Rights in Determining the Scope of Human Rights. (pp. 38-64).

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Abstract

© Cambridge University Press 2013. Constitutive v. diagnostic questions. One recurrent problem in much contemporary literature on rights is the failure to distinguish between constitutive and diagnostic questions. Constitutive questions are questions about what makes it the case that the world is such and such. For example, what makes it the case that someone suffers from cancer? What makes it the case that it will snow tomorrow? Diagnostic questions by contrast are questions about how we come to find out that the world is such and such. How do we find out whether someone has cancer? How do we find out whether it will snow tomorrow? Constitutive questions are questions about how the world is. Diagnostic questions are questions about how we form beliefs about the world and how we go about acquiring knowledge about it. For example, a constitutive question about cancer is a question about the genetic make-up of the disease, which roughly consists in unregulated cell growth. Unregulated cell growth is part of what constitutes cancer. A diagnostic question about cancer, by contrast, is a question about how we go about ascertaining whether someone has cancer. This can take the form of performing various tests, such as MRI, X-rays, blood tests or looking for relevant symptoms such as pain or swelling. Such tests do not constitute cancer, even when they are positive; they merely indicate the presence or absence of cancerous cells. Likewise, a constitutive question about snow is a question about the physics and chemistry of snow, which roughly consists in precipitation of atmospheric water vapour in the form of crystalline water ice. A diagnostic question about snow, by contrast, is a meteorological question about the tests we use (e.g. thermometers, barometers, satellites) to predict whether the atmosphere in a particular region will precipitate into crystalline water ice at a given time.

Type: Book chapter
Title: The scope and balancing of rights: Diagnostic or constitutive?
ISBN-13: 9781107337923
DOI: 10.1017/CBO9781107337923.004
UCL classification: UCL > School of Arts and Social Sciences
UCL > School of Arts and Social Sciences > Faculty of Laws
URI: http://discovery.ucl.ac.uk/id/eprint/1412429
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