Balancing and the structure of constitutional rights
* Research fellow, Fritz Thyssen Foundation, Institute for Public Law, University of Freiburg, and Lincoln College, Oxford. I am particularly indebted to Dimitrios Kyritsis, Grégoire Webber, and, especially, Nicos Stavropoulos for their extensive and valuable comments. Furthermore, I would like to thank the participants of the Jurisprudence Discussion Group at Oxford and my seminars on Alexy's theory of constitutional rights at Lincoln College for their helpful suggestions on earlier versions of this paper. Email: kai.moller{at}law.ox.ac.uk
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Abstract |
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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.