Möller, Kai 
ORCID: 0000-0003-3360-4639
(2024)
Lüth and the 'objective system of values': from 'limited government' towards an autonomy-based conception of constitutional rights.
In: Choudhry, Sujit, Hailbronner, Michaela and Kumm, Mattias, (eds.)
Global Canons in an Age of Contestation: Debating Foundational Texts of Constitutional Democracy and Human Rights.
Oxford University Press, 255 - 268.
ISBN 9780192866158
Abstract
In its Lüth judgment of 1958, the German Federal Constitutional Court famously claimed that the German Basic Law erects an ‘objective system of values’ (objektive Wertordnung) in its section on rights. This chapter shows that Lüth was the birth hour of the now globally dominant conception of constitutional rights, according to which rights are not primarily concerned with the limitation of the power of the state (or ‘limited government’) but rather with the adequate protection of the right-holder’s personal autonomy. As an exception to this trend, the chapter considers and discusses the US Supreme Court’s judgment in DeShaney v. Winnebago County of Social Services. It concludes by spelling out some of the implications of the commitment to an autonomy-based conception of rights and outlines how these have been addressed in the theoretical literature in the decades since Lüth was decided, including in the theories of rights as principles (Robert Alexy), judicial review as Socratic contestation and as giving effect to the fundamental right to justification (Mattias Kumm), the culture of justification (Moshe Cohen-Eliya and Iddo Porat, among others), and the global model of constitutional rights (Kai Möller).
| Item Type: | Book Section |
|---|---|
| Divisions: | Law |
| Subjects: | K Law > K Law (General) |
| Date Deposited: | 05 Nov 2024 11:18 |
| Last Modified: | 11 Dec 2024 18:16 |
| URI: | http://eprints.lse.ac.uk/id/eprint/125949 |
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