Journal Article

Balancing and the structure of constitutional rights

Kai Möller

in International Journal of Constitutional Law

Published on behalf of The New York University School of Law

Volume 5, issue 3, pages 453-468
Published in print July 2007 | ISSN: 1474-2640
Published online July 2007 | e-ISSN: 1474-2659 | DOI: https://dx.doi.org/10.1093/icon/mom023
Balancing and the structure of constitutional rights

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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.

Journal Article.  6950 words. 

Subjects: Constitutional and Administrative Law ; UK Politics

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