Do Courts Balance Clashing Rights? Evidence from French Rulings on the Eviction of Roma Shantytowns, 2010-2015

Despite eloquent arguments that rights properly conceived cannot clash, extensive jurisprudential evidence suggests that in practice they do. Yet the conflict of rights is understudied in the burgeoning human rights literature in political science. This paper focuses on one aspect of this issue: How do courts handle conflicting rights? The extant interdisciplinary literature suggests two main positions. The first is that courts engage in careful balancing to reach unbiased compromises between clashing rights and right-holders. Yet critics contend that the judicial discretion afforded by conflicting rights opens the door to extra-legal factors that systematically bias legal decisions. In this second view, judges’ predispositions and prejudices shape rulings in favor of certain rights and right-holders over others. These positions are not merely of academic interest, but have crucial implications for the enforcement of rights. 

To assess the empirical purchase of these two positions, this paper examines French jurisprudence on the eviction of Roma shantytowns. This case is important, interesting, and it even touches on the conference’s main theme insofar as the Roma immigrant is the poster child of resilience. Because Roma immigrants in France build their makeshift homes on land they do not own, eviction decisions entail conflict between owners’ right to property and Roma immigrants’ right to privacy, family life, and protection against degrading treatment. Relying on content analysis we code over 200 court decisions to evaluate whether French courts balance these conflicting rights. The paper promises important contributions to the politics of human rights law, immigration, and ethnicity.