Alexy's Theory of Constitutional Rights and the Problem of Judicial Review

Mattias Kumm

in Institutionalized Reason

Published in print February 2012 | ISBN: 9780199582068
Published online May 2012 | e-ISBN: 9780191739354 | DOI:
Alexy's Theory of Constitutional Rights and the Problem of Judicial Review

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In A Theory of Constitutional Rights Robert Alexy provides an account of the structure and domain of constitutional rights. The core claim relating to the structure of rights is that constitutional rights are principles and that proportionality analysis is necessarily at the heart of reasoning about what principles require in real contexts. The core claim relating to the proper domain or scope of rights is that there are good grounds for recognizing a general right to liberty and a general right to equality. A conception of rights that shares these two features defines the ‘Rationalist Human Rights Paradigm’ (RHRP). This chapter focuses on the following question: if rights do have the structure and occupy the domain that Alexy suggests, what is the justification for courts setting aside legislation in the name of adjudicating rights? That question is tied to the classical chestnut of an issue that is the legitimacy of judicial review. But it becomes more focused and specific when tied to the particular theory of rights that Alexy defends. The structure of a theory of rights has direct implications for the understanding of the practice of judicial review. What then are the specific problems and best justifications of a practice of judicial review that embraces the RHRP?

Keywords: constitutional rights; Rationalist Human Rights Paradigm; courts; adjudicating rights; judicial review

Chapter.  8786 words. 

Subjects: Jurisprudence and Philosophy of Law

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