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Two conceptions of positive liberty: towards an autonomy-based theory of constitutional rights

Moller, Kai (2009) Two conceptions of positive liberty: towards an autonomy-based theory of constitutional rights. Oxford Journal of Legal Studies, 29 (4). pp. 757-786. ISSN 0143-6503

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Identification Number: 10.1093/ojls/gqp029


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.

Item Type: Article
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Additional Information: © 2009 Oxford University Press
Divisions: Law
Subjects: K Law > K Law (General)
Date Deposited: 12 Nov 2009 12:49
Last Modified: 20 Jun 2021 01:41

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