Theory Of Constitutional Rights Research Articles

Review of Anne Wesemann (2020). Citizenship in the European Union: constitutionalism, rights and norms. Elgar studies in European law and policy. Edward Elgar Publishing, ISBN: 978 1 83910 316 2, 192pp.

Wesemann offers a refreshingly insightful and theoretically sophisticated analysis of the jurisprudence of the Court of Justice of the European Union (CJEU) on EU citizenship by framing her analysis within the theory of constitutional rights developed by German theorist Robert Alexy.

Alexy and the “German” Model of Proportionality: Why the Theory of Constitutional Rights Does Not Provide a Representative Reconstruction of the Proportionality Test

AbstractRobert Alexy is one of the most prominent proponents of proportionality in international legal scholarship. His theory has two dimensions. On the one hand, it is a normative defense of balancing. On the other hand, it seeks to provide a reconstruction of the case law of the German Federal Constitutional Court. This Article focuses on the reconstructive part of his theory. It argues that his reconstruction of the jurisprudence of the German Constitutional Court is only partly accurate. In particular, it does not provide a suitable reconstruction of the decisions in which the Court finds a statute to be inconsistent with the constitution. For this reason, the normative critique of Alexy’s theory does not necessarily translate into a critique of the jurisprudence of the German Constitutional Court’s application of proportionality or even the proportionality doctrine itself. Instead, it targets only one specific interpretation of proportionality.

ON THE BALANCING OF RIGHTS AND THE PROPORTIONALITY OF JUDICIAL DECISIONS: IS IT NOT MORE FICTION THAN REALITY?

This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.

ON THE BALANCING OF RIGHTS AND THE PROPORTIONALITY OF JUDICIAL DECISIONS: IS IT NOT MORE FICTION THAN REALITY?

This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.

ON THE BALANCING OF RIGHTS AND THE PROPORTIONALITY OF JUDICIAL DECISIONS: IS IT NOT MORE FICTION THAN REALITY?

This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.

ON THE BALANCING OF RIGHTS AND THE PROPORTIONALITY OF JUDICIAL DECISIONS: IS IT NOT MORE FICTION THAN REALITY?

This is a research paper on the prevalence of interests and values of the highest social groups against the interests and values of subordinate social groups, such as migrants, even in judicial decisions of apparently individual conflicts involving only plaintiff and defendant. Individual rights, on which the modern Government was structured, tend to prevail over social rights. This prevalence is crucial even in the context of the theory of constitutional rights of Robert Alexy, who states equal importance to individual or social rights and that, because of the proportionality, there would be a chance that social rights would prevail. It is even possible to say that each collision of rights will be determined proportionally and differently, but the proportionality does not confer rationality to the discretion needed to justify the decision. The proportional decision has more to do with the chosen criterion than the conflicting rights.

Entre regras e pricípios

A presente resenha tem por finalidade compreender, de maneira global, a problemática presente no Capítulo 3 de Teoria dos Direitos Fundamentais, de Robert Alexy. Assim, fez-se uma abordagem compreensiva dos principais conceitos que orbitam à volta do problema da colisão de princípios, além de se destacar os principais pontos da argumentação construída no mencionado Capítulo.

Interés legítimo en amparo. un instrumento procesal “Comunitarista”

An important part of the constitutional interpretation arises as a result of the trial of amparo, however this does not imply that the Supreme Court of Justice has built a uniform theory of constitutional rights and freedoms. This text has three purposes: (a) show that speech rights court only has foundation on communitarianism justice or utilitarianism, (b) emphasize that the interpretation of legitimate interest in amparo follows the same fate and (c) noted that the incorporation of that procedural tool in the new model of amparo, can include of an egalitarian liberal view on constitutional justice.

Epistemic discretion in constitutional law

The problem of epistemic or knowledge-related discretion arises whenever knowledge of what is commanded or prohibited by the constitution is unreliable. The unreliability of knowledge and the resulting discretion are important aspects in the balancing of constitutional rights. Robert Alexy has, in his Theory of Constitutional Rights, laid down an analysis of epistemic discretion that appears to raise a number of questions. These concerns include the relevance of empirical and normative knowledge in balancing, the function of reliability in the Weight Formula, and the correlation between epistemic discretion of the legislature and judicial review by a constitutional court. This article highlights some of the problematic issues and suggests several modifications of and completions to Alexy’s analysis.

Rights, Religion, Riviera, and Roma

Summary The recent conflict between the French government and the EU over Roma motivates a more general examination of the EU's free mobility policies. The article describes three additional situations, access to land in desirable locations, access to universities, and access to health care, in which the EU's policies with respect to mobility can lead to Pareto sub-optimal outcomes. More generally, the article challenges the now widely held presumption, which underlies debates like these over rights, that there exists some set of universal human rights of which free movement is a member. A utilitarian theory of constitutional rights is offered instead. The article demonstrates that some constitutional rights, as those contained in the U.S. Bill of Rights, do fit the theory rather well. The UN's Universal Declaration of Human Rights, and the EU's Charter of Fundamental Rights are used as examples of universal human rights, which are difficult to defend under the theory proposed here, or under any other theory.

Two Conceptions of Positive Liberty: Towards an Autonomy-based Theory of Constitutional Rights

In the jurisprudence of constitutional courts around the world, there is an emerging trend towards an autonomy-based understanding of constitutional rights: increasingly, rights are interpreted as being about enabling people to live autonomous lives, rather than disabling the state in certain ways. This essay investigates the conception of autonomy employed by courts by presenting two candidates and examining which of them explains better the current practice of constitutional rights law. The first, labelled the excluded reasons conception of autonomy, claims that a person’s autonomy is violated if he is treated on the basis of certain impermissible – in particular moralistic or paternalistic – reasons. It is concluded that while this is a coherent understanding of autonomy, it cannot explain many of the rights which are widely accepted today. The second, the protected interests conception, argues that a person has autonomy interests in controlling certain domains of her life, and offers a scale on which the importance of the various autonomy interests can be assessed. The essay demonstrates that this conception is coherent and adequately explains the current practice. The final section briefly explores some implications of this result for a comprehensive reconstructive theory of constitutional rights.

Los derechos fundamentales y la teoría de los principios: ¿es la teoría de los principios la base para una teoría adecuada de los derechos fundamentales de la Constitución Española?

Desde la publicación en 1993 de su primera traducción al castellano por Ernesto Garzón Valdés, la Teoría de los Derechos Fundamentales de Robert Alexy ha influido en la discusión sobre los derechos fundamentales de la Constitución Española. Algunos autores han considerado que la tesis principal de Alexy, según la cual, los derechos fundamentales son principios y los principios son mandatos de optimización, es una explicación adecuada de la naturaleza y la estructura de los derechos fundamentales, que puede utilizarse como base para la construcción de una teoría adecuada de los derechos fundamentales de la Constitución Española. Sin embargo, otros autores han vislumbrado en esta tesis una concepción incorrecta, que legitima un inapropiado activismo judicial. El objetivo de este artículo es examinar la recepción y la discusión en España de la teoría de los derechos fundamentales de Alexy. En esta dirección, la primera parte estudia la recepción de la tesis de los derechos fundamentales como principios. La segunda parte da cuenta de tres grupos de objeciones que se han hecho valer en contra de la teoría de los principios. En la tercera parte se intentará dar una respuesta adecuada a estas objeciones.

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 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.

Constitutional rights as principles: On the structure and domain of constitutional justice. A review essay on A Theory of Constitutional Rights

Constitutional rights as principles: On the structure and domain of constitutional justice. A review essay on A Theory of Constitutional Rights

The Permissibility of Affirmative Action in Higher Education Under Human Rights Law

International human rights are the supreme law of the land, and thus are a legitimate and valuable source of the permissibility of affirmative action. This source is not only found in federal law relevant to decision making at federal and state levels, but is also found in federal policy which is relevant to the issue of federal preemption. Treaty-based permissibility does not however guarantee that particular measures of affirmative action will survive challenges under other constitutional provisions, but it is relevant to an evolving theory of constitutional rights. Indeed, treaty-based permissibility of affirmative action, coupled with other relevant sources, provide the basis for a compelling state interest for both federal and state initiatives, especially concerning higher education.