Model Of Constitutional Rights Research Articles

Stability and Change under the Global Model of Constitutional Rights: A Reply to Vanessa MacDonnell

Abstract The essay responds to a challenge posed by Vanessa MacDonnell and examines the question of stability and change under the global model of constitutional rights. Constitutionalism offers the promise of both stability and justice, but it may seem that there will often be a tension between these values. While some have accused the global model, and in particular proportionality, of overemphasizing justice at the cost of stability, MacDonnell claims that it underemphasizes the necessity of social change. In this response, I argue that in the long run the push for social change and towards justice can be realized only when there is also a certain stability, namely the stubborn democratic insistence that any state action must be reasonably justifiable to those affected by it in terms of their freedom and equality. This conviction lies at the core and will be reinforced by the endorsement of the global model of constitutional rights.

: (Civil and Security Public Servantss Right to Strike in Palestine: Balancing Rights and Public Interests)

Arabic Abstract: تقوم نظرية النموذج العالمي للحقوق الأساسية ذات التوجه الترميمي، التي وضعها كاي مولر، على مجموعة من الفرضيات التي تساعد في تحديد كون الحق حقا أساسيا. تعمل الباحثة في هذه الورقة البحثية على إسقاط هذه الفرضيات على حق العاملين في الخدمة المدنية و قوى الأمن الفلسطينية في الإضراب، حيث تتناول الباحثة مبررات اعتبار حق هذه الفئة في الإضراب هو حق أساسي، والآثار المترتبة على ذلك من التزامات تقع على الدولة والأفراد، وصولا إلى كيفية إعمال التوازن ما بين الحق في الإضراب وحماية المصلحة العامة والأمن العام، انتهاء إلى معرفة مدى تمتع هذه الفئة بالحق في الإضراب و القيود المعقولة التي من الممكن أن ترد في هذا الحق. English Abstract: Kai Moller's Global Model of Constitutional Rights that takes a reconstructive approach, is based on a set of hypotheses that help determine if a prima facie right can be considered a fundamental right – a constitutionally protected right. In this paper, the researcher will apply these hypotheses on the right of civil servants and the Palestinian security forces to strike. The researcher will tackle the legal justifications that categorize the right to strike as a fundamental right, along with obligations that raise upon the state when recognizing such right. Furthermore, the paper will address the issue of balancing between the right to strike in one hand, and the protection of general interest and national security on the other, it will conclude with the examination to what extent these workers enjoy this right highlighting in this matter the reasonable restrictions that hold the enjoyment of this right.

(The Individual's Religious Identity and His/Her Identity Card)

Arabic Abstract: تسقط الورقة البحثية مفهوم النموذج العالمي للحقوق الأساسية- الذي يتبناه فقهاء القانون الدستوري وبعض الدول المعاصرة منذ عقود- على التوجه الحديث للدول الإسلامية والعربية في مفهومها للحماية الدستورية للحقوق الأساسية، بعد أن كانت أبرز ملامح هذا التوجه في الآونة الأخيرة، حذف خانة الديانة من بطاقة الهوية الشخصية لمواطني بعض الدول الإسلامية والعربية، فلسطين نموذجا، وتعمل الورقة البحثية النظر في حق الفرد في عدم إظهار ديانته في بطاقة هويته الشخصية في ظل الفرضيات الأربع للنموذج العالمي للحقوق الأساسية؛ باعتبار هذا الحق حقا أساسيا فعلا كونه يمس باستقلالية الفرد وكرامته، والاستدلال على ملامحه في التشريعات الوطنية والإقليمية والدولية. وما يترتب على السلطة الوطنية الفلسطينية من التزامات إيجابية لحماية حق المواطن في عدم إظهار ديانته في بطاقة هويته الشخصية من جهة، وما يترتب على المواطنين أنفسهم من حماية هذا الحق في مواجهة بعضهم من جهة أخرى. وتعمل الورقة البحثية أيضا التوازن عند تنافس الحق والمصلحة العامة ذات الهدف المشروع، في ظل دولة تنتمي لفكر فيه عالم الدين وعالم حقوق الإنسان لم يتعايشا يوما على نحو مريح. English Abstract: The research paper examines the recent doctrine of the Islamic and Arab countries in protecting human rights in the context of the “global model of constitutional rights” which developed as a result of the jurisprudence of some high and constitutional courts in the last decades. The recent prominent feature of this doctrine is the abolishment of religion box from citizens’ identification (ID) cards, with reference to Palestine as a case study. The paper considers the right of individuals not to reveal or expose their faith in their personal ID cards under the four assumptions of the global model of constitutional rights. Considering this right at the as a prima facie right, since it affects the independence and dignity of the individual. Examining in this matter the positive obligations of the Palestinian Authority under the duty of taking affirmative steps to protect the individual right of not to revealing his faith in his personal ID, and the horizontal effect of the right as well, which indicates that the right not to show the individual’s faith in his personal ID operates between individuals themselves. The paper concludes that this right is limitable by a recourse to a balancing and proportionality approach when competing a public interest to a state where the world of religion and the world of human rights have not always coexisted comfortably.

Treating the Personall as Private: Contextualising the Normative Framework of Cannabis Clubs in Spain within a Global Model of Constitutional Rightss

This article provides an analysis of the normative framework of Spanish cannabis clubs with the aim of contextualising it within a growing body of comparative constitutional law that recognises legal obstructions to personal drug consumption as intrusions on the right to privacy. Article 3(2) of the United Nations Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances, 1988 relieves signatory states from the Article’s obligation to criminalise drug possession and cultivation for ‘personal consumption’ where doing so would conflict with the constitution or the basic concepts of their legal system. Spain appears to have been the only country in which the legislature (as opposed to the judiciary) has relied on Article 3(2) in its decision not to criminalise conduct for personal consumption. In doing so the government omitted to specify the constitutional ground relied upon, and the scope of the conduct encapsulated in its drug offence is open to judicial interpretation. The Spanish judiciary has had to consider the legal implications of collective consumption and cultivation. As well as operating in a grey area of domestic law, Spain’s cannabis clubs straddle the blurred boundary in international and European instruments between ‘personal consumption’ and ‘drug trafficking’. This article argues that the ambiguity surrounding the meaning of ‘personal consumption’ is best decided within the framework of the ‘global model of constitutional rights’, particularly given the acknowledgement given to the engagement of constitutional principles by the term in the 1988 Convention. This article includes an analysis of all constitutional decisions on the relationship between human rights and criminal laws on recreational drug use from around the world.

U.S. Constitutional Law, Proportionality, and the Global Model

Following the global success of the principle of proportionality in human and constitutional rights adjudication, there is now an emerging debate among academics and judges in the United States as to whether proportionality ought to be introduced into U.S. constitutional law. My goal in this paper is to correct what I see as a misleading simplification in this discussion, namely the view that the United States could introduce proportionality while leaving the other features and characteristics of its constitutional rights jurisprudence intact. I argue that if proportionality is adopted, coherence requires that the other features of what in previous work I have labelled “the global model of constitutional rights” be embraced as well: rights inflation, positive obligations, socio-economic rights, and horizontal effect. Thus, proportionality is not just an isolated standard of review but part and parcel of a conception of rights that must be adopted or rejected as a whole.

The Global Model of Constitutional Rights: A Response to Afonso Da Silva, Harel, and Porat

This essay responds to Virgilio Afonso da Silva, Alon Harel, and Iddo Porat, who offered critical comments on my book The Global Model of Constitutional Rights at a symposium at the Hebrew University of Jerusalem in December 2013. Their comments, together with this response, will be published in the Jerusalem Review of Legal Studies. The paper deals with, first, questions relating to the methodology of my book (in particular the nature of my theory as morally reconstructive, and its global character), second, the role of autonomy (in particular its relation to equality, and my defence of a general right to autonomy), and third, the problem of justification (outcome-based versus excluded reasons-based ways of reasoning about questions of rights).

How Global Is Global Constitutionalism?

This paper is a comment on Kai Moller, The Global Model of Constitutional Rights (Oxford University Press 2012). In his book, Moller aims to develop a theory of rights which could explain the main features of what he calls the model of constitutional rights. These main features are: rights inflation, positive obligations and socio-economic rights, horizontal effects, and balancing and proportionality. Moller's theory is substantive, reconstructive and general, in contrast to formal, normative or particular theories. In this paper, I focus on the first two characteristics and attempt to analyse whether (1) his reconstructive theory can be substantive, and whether (2) his substantive theory can be global. Additionally, since the proportionality test is a central feature of Moller's global model, I will also analyse one specific element of his account of this test.

How Global is Global Constitutionalism?: Comments on Kai Moller's The Global Model of Constitutional Rights

Kai Möller’s The Global Model of Constitutional Rights1 is an ambitious project. In this book, he aims to develop a theory of rights which could explain the main features of what he calls the “global model of constitutional rights.” These main features are as follows: rights inflation, positive obligations and socioeconomic rights, horizontal effects, and balancing and proportionality.2 According to him, despite the success of the so-called global model, especially regarding judicial practice, there is still no comprehensive theory able to explain it. Still according to him, such a comprehensive theory should be able to explain which values are protected by rights and what their limits are, as well as establish the proper relation between judicial enforcement of rights and democracy. The main features of Möller’s theory are as follows: it is a substantive, reconstructive, and general theory, in contrast to formal, normative, or particular theories. In the following sections, I will focus on the first two characteristics and attempt to analyze whether (i) his reconstructive theory can be substantive, and whether (ii) his substantive theory can be global. Additionally, since the proportionality test is a central feature of Möller’s global model, I will also analyze one specific element of his account of this test.

The Global Model of Constitutional Rights: A Response to Afonso da Silva, Harel, and Porat

The issues and criticisms that Virgílio Afonso da Silva, Alon Harel, and Iddo Porat raise about The Global Model of Constitutional Rights1 relate, first, to its methodology (in particular the nature of my theory as morally reconstructive, and its global character), secondly, to the role of autonomy (in particular its relation to equality, and my defence of a general right to autonomy), and thirdly, to the problem of justification (outcome-based versus excluded reasons-based ways of reasoning about questions of rights). Correspondingly, I divide this response into three sections, dealing with the methodological questions in the first, with the autonomy-related issues in the second, and with the problem of justification in the final section. Any morally reconstructive theory is Janus-headed: it looks both to fit with the practice and to moral value. Thus, a morally reconstructive theory of the global model of constitutional rights must meet two criteria: first, it must “fit” the global model sufficiently well to be rightly considered a theory “of” that practice, and second, it must be morally coherent. If, on the one hand, my theory did not have sufficient fit, then it would simply be a free-standing theory of rights—indeed it might be excellent in this regard, but it could not claim to be a theory of the global model. If, on the other hand, my theory were morally incoherent, it could not claim to be a moral reconstruction. The goal of the book is to show that the global model, which departs in so many ways from how almost all moral and political philosophers think about rights, is morally defensible. A morally incoherent theory obviously could not be used to demonstrate this claim. It is of course a possibility that a practice is morally indefensible: that it cannot be reconstructed in a way which fits the practice and shows it as morally appealing (think of Nazi law as an extreme example). Where that is the case, it must be concluded that the practice ought to be abandoned or radically changed, precisely because no theory that fits that practice sufficiently well displays moral coherence.

The Global Model of Rights and Exclusionary Reasons: Comments on Kai Moller's The Global Model of Constitutional Rights

The Global Model of Rights and Exclusionary Reasons: Comments on Kai Moller's The Global Model of Constitutional Rights

Reply to Commentators on Proportionality and Constitutional Culture

We are very thankful for the opportunity offered to us to have our book discussed in such a remarkable forum and get such excellent comments. Despite having worked on these issues for many years now, we have found in these comments many new ideas and angles of thought that have challenged us to further elucidate and refine our arguments. We are happy all the more that our book is discussed in tandem with Kai Möller’s excellent work on the Global Model of Constitutional Rights. The conjunction of these two books, we hope, will help promote and establish the emerging and vibrant field of global constitutionalism, and we thank the organizers of these symposiums for this choice. The book centers on one of the most prominent elements of global constitutionalism, which is the doctrine of proportionality, and compares it to its corollary in U.S. constitutional law—balancing. The two concepts began their careers as local doctrines, but one of them, proportionality, has witnessed since WWII an overwhelming success and has spread practically to every legal system except the American one.

Do Legal Rights Matter? Comments on The Global Model of Constitutional Rights

Do Legal Rights Matter? Comments on The Global Model of Constitutional Rights

From constitutional to human rights: On the moral structure of international human rights

AbstractThe paper presents a theory of the moral structure of international human rights. It proceeds by drawing on recent scholarship on the philosophy of national constitutional rights, which has shown that there is now an emerging global consensus on certain structural features of constitutional rights; in previous work I have summarized this under the label ‘the global model of constitutional rights’. Starting from the theory of rights underlying the global model, the paper asks what modifications, if any, are required to turn that theory into a suitable theory of international human rights. In particular, it examines the widely held view that international human rights are more minimalist than national constitutional rights. Discussing recent work by Ronald Dworkin (on political/constitutional versus human rights) and Joseph Raz (on legitimate authority versus national sovereignty), the paper concludes that it is not possible to make rights more minimalist than they already are under the global model. It follows that the moral structures of national constitutional rights and international human rights are identical. The final section of the paper examines some implications of this result, addressing the issues of the workability of the proposed conception of international human rights in practice, its point and purpose, and discussing the obligations of states to participate in international mechanisms for the protection of human rights.

Kai Moller, The Global Model of Constitutional Rights

In his ambitious and deeply engaging new book, Kai Möller makes his case for a particular understanding of constitutional rights which he calls the global model of constitutional rights. The global model is posed by Möller in opposition to the ‘dominant narrative of the philosophy of fundamental rights’ (p. 2). The dominant narrative recognises that (1) rights protect only especially important interests of individuals; (2) rights impose primarily or exclusively negative obligations on the state; (3) rights operate only between a subject and the state and not between subjects; and (4) rights enjoy a special normative force so that they may only be exceptionally outweighed by other considerations. While Möller recognises that certain of the features of the dominant narrative, especially the second, have been eroded to a considerable degree in various jurisdictions, he states that under the global model all four elements of the dominant narrative have explicitly...

"Balancing as reasoning" and the problems of legally unaided adjudication: A rejoinder to Francisco Urbina

The conception of balancing which I outlined in my essay “Proportionality: Challenging the Critics” and developed at greater length in chapter 6 of my book The Global Model of Constitutional Rights connects “balancing” to “reasoning.” When we say, for example, that we have to strike an adequate “balance” between privacy and security, then this is best interpreted as meaning that there is a conflict between the two values and that we must develop a moral argument addressing the question of how much of each should be protected. Thus, in contrast to how some critics would have it, properly understood, the notion of balancing does not necessarily refer to consequentialist reasoning or mechanical ways of quantification and comparison, but simply directs the judge to resolve a conflict in line with sound moral principles...

Book Notes: The Global Model of Constitutional Rights, by Kai Möller

Book Notes: The Global Model of Constitutional Rights, by Kai Möller

The Global Model of Constitutional Rights: Introduction

Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterized by an extremely broad approach to the scope of rights (sometimes referred to as 'rights inflation'), the acceptance of horizontal effect of rights, positive obligations, and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights. Drawing on analyses of a broad range of cases from the UK, the European Court of Human Rights, Germany, Canada, the US, and South Africa, the book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers. The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy: a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book proposes a theory of the structure of this justification which offers original and useful accounts of the important doctrines of balancing and proportionality. The introductory chapter gives an overview of the project of the book and identifies the existence of the global model of constitutional rights. It then explains the terminology – in particular the use of the terms ‘constitutional’ and ‘global’ –, the reconstructive methodology, and addresses the question of whether the US tradition of constitutional rights law forms part of the global model. It concludes by providing a summary of the book’s main claims.

Social and Economic Rights? Lessons from South Africa

Do social and economic rights belong in a democratic constitution? Skeptics have wondered whether it is possible to constitutionalize such rights without imposing an untenable managerial responsibility on courts. In an extraordinary decision, the Constitutional Court of South Africa has provided a new approach to social and economic rights, one that respects the fact of limited resources while also requiring governmental attention to basic needs. This new approach might be called an administrative law model of constitutional rights. It contains considerable promise, because it recognize rights to reasonable programs, rather than to protection of each individual, a path that might well be beyond governmental capacities.