Balancing and the structure of constitutional rights

Author: Mller, Kai

Source: International Journal of Constitutional Law, Volume 5, Number 3, 22 July 2007 , pp. 453-468(16)

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Abstract:

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.

Document Type: Research article

DOI: http://dx.doi.org/10.1093/icon/mom023

Publication date: 2007-07-22

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Published in association with the New York University School of Law, I"CON is dedicated to international and comparative constitutional law. I"CON has international editorial and advisory boards and an international focus. It examines an array of theoretical and practical issues and offers critical analysis of current issues and debates. In addition, I"CON looks at global trends that carry constitutional implications. It features scholarly articles by international legal scholars, judges, and people from related fields, such as economics, philosophy, and political science.