Constitutional Rights and the Rule of Law

T.R.S. Allan

in Institutionalized Reason

Published in print February 2012 | ISBN: 9780199582068
Published online May 2012 | e-ISBN: 9780191739354 | DOI:
Constitutional Rights and the Rule of Law

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This chapter offers a view of Alexy's study of the German Basic Law which treats it as an account, more broadly, of the ideal of the rule of law, given appropriate shape as a theory of constitutionalism. Doubting whether there is any difference, at the most fundamental level, between written and unwritten constitutions, it suggests that both German and British constitutions should be seen as instantiations of an underlying model of liberal-democratic constitutionalism. Since our concept of law embodies that ideal — the ideal of morally justified authority, such as could be acknowledged, in principle, by all those subject to it — we cannot neatly separate questions of legal authority from questions of constitutional right. The limits of the state's authority are set by our best understanding of what the basic rights of liberty, equality, and respect for human dignity require. Rules or decisions that violate those principles therefore carry no genuine, but only purported, authority; and there is an inherent jurisdiction, deriving from the duty of courts to apply the law, to draw such conclusions in appropriate cases.

Keywords: Robert Alexy; constitutional rights; German Basic Law; rule of law; legitimacy

Chapter.  10634 words. 

Subjects: Jurisprudence and Philosophy of Law

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