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Balancing and the structure of constitutional rights

Moller, Kai (2007) Balancing and the structure of constitutional rights. International Journal of Constitutional Law, 5 (3). pp. 453-468. ISSN 1474-2640

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Abstract

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.

Item Type: Article
Official URL: http://www.oxfordjournals.org/
Additional Information: © 2007 Oxford University Press
Library of Congress subject classification: K Law > K Law (General)
Sets: Departments > Law
Rights: http://www.lse.ac.uk/library/usingTheLibrary/academicSupport/OA/depositYourResearch.aspx
Date Deposited: 12 Nov 2009 12:51
URL: http://eprints.lse.ac.uk/25643/

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