Balancing and the structure of constitutional rights

There are important differences between reasoning with constitutional rights and reasoning with moral fundamental rights. One of them is that constitutional courts around the world employ a balancing or proportionality test in order to determine the limits of rights, whereas many philosophers reject...

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Bibliographic Details
Published inInternational journal of constitutional law Vol. 5; no. 3; pp. 453 - 468
Main Author Moller, K.
Format Journal Article
LanguageEnglish
Published Oxford University Press 01.07.2007
Subjects
Conceptualization
Constitutional law
Constitutions
Courts
Ethics
Human Rights
Jurisprudence
Philosophers
Reasoning
Rights
Structural analysis
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Summary:There are important differences between reasoning with constitutional rights and reasoning with moral fundamental rights. One of them is that constitutional courts around the world employ a balancing or proportionality test in order to determine the limits of rights, whereas many philosophers reject such an approach. In his book A Theory of Constitutional Rights, Robert Alexy develops a comprehensive conception of constitutional rights, his central thesis being that they are optimization requirements and, as such, necessarily open to balancing. This essay reviews the success of Alexy's claim and concludes that he ultimately fails to demonstrate that balancing holds a rightful place in constitutional rights reasoning.
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ISSN:1474-2640
1474-2659
DOI:10.1093/icon/mom023