Search results for: a-theory-of-constitutional-rights

A Theory of Constitutional Rights

Author : Robert Alexy
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This classic work of constitutional theory analyzes the general structure of constitutional rights and their judicial application. It deals with a wide range of problems common to all systems of constitutional rights review - from balancing rights to deciding the limits of their scope.

Proportionality Balancing and Rights

Author : Jan-Reinard Sieckmann
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The book focuses on Robert Alexy's theory of constitutional rights. Alexy systematically presented the theory in his seminal book Theorie der Grundrechte (1985; Engl. translation Theory of Constitutional Rights, 2002) and continued to develop it in numerous subsequent articles. Arguably still the most influential theory of constitutional rights, it has found widespread academic support, as well as recognition in several constitutional jurisdictions. On the other hand, it has also been the object of considerable criticism. The aim of this book is to outline the central aspects of Alexy's theory as he sees them, and to further develop the principles of constitutional, fundamental, and human rights by applying a constructive criticism of his theory.

Arguing Fundamental Rights

Author : Agustín J. Menéndez
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This book explores the trail-blazing Theory of Constitutional Rights of Robert Alexy. The authors combine critical analysis of the structural elements of Alexy’s theory with an assessment of its applied relevance, paying special attention to the UK Human Rights Act and the Charter of Fundamental Rights of the European Union. Alexy himself opens the book with an insightful contextualisation of his theory of fundamental rights within his general legal theory.

Comparative Constitutional Theory

Author : Gary Jacobsohn
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The need for innovative thinking about alternative constitutional experiences is evident, and readers of Comparative Constitutional Theory will find in its pages a compendium of original, theory-driven essays. The authors use a variety of theoretical perspectives to explore the diversity of global constitutional experience in a post-1989 world prominently marked by momentous transitions from authoritarianism to democracy, by multiple constitutional revolutions and devolutions, by the increased penetration of international law into national jurisdictions, and by the enhancement of supra-national institutions of governance.

A Constitutional Doctrine of Freedom

Author : Kai Møller
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The thesis proposes a substantive moral, reconstructive theory of the practice of constitutional rights law as it has emerged in the last 60 years in various jurisdictions all over the world. In a nutshell, this practice is characterised by an extremely broad approach to the interests protected as prima facie rights combined with a far-reaching limitability of those rights under a balancing or proportionality approach. It thus stands in striking contrast to the conceptions of rights endorsed by philosophers who almost unanimously regard rights as protecting a limited range of very important interests and enjoying some special normative force. Having set out the project in Chapter One, the following three chapters develop a theory of the prima facie stage of rights. Chapter Two identifies the value of personal autonomy - positive freedom - as explaining better than its main rival, negative freedom, the core features of the practice. Chapter Three builds on this result and defends a particular conception of autonomy - the protected interests conception - as cohering best with the practice. This conception regards autonomy as including certain interests which can be ranked according to their importance for the self-conception of the agent. Chapter Four develops a theory of the prima facie stage of constitutional rights by arguing that constitutional rights protect comprehensively the autonomy interests of the right-holder. Chapters Five to Seven deal with the justification stage of rights. Chapter Five develops a theory of the justifiability and, related, the standard of judicial review, arguing that constitutional rights are violated when a policy fails to set up a reasonable - as opposed to the one correct - specification of the spheres of autonomy of equal citizens. Chapters Six and Seven draw on this result to provide theories of the main doctrinal tools at the justification stage, namely balancing and proportionality. Chapter Six proposes a theory of the resolution of conflicts of autonomy interests and thus clarifies the concept of balancing. Chapter Seven integrates the results of the previous chapters into a theory of proportionality, arguing that this principle provides lawyers with an attractive tool for the structured resolution of conflicts of autonomy interests and thus also constitutional rights cases.

Law s Ideal Dimension

Author : Robert Alexy
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This collection provides a comprehensive account of Robert Alexy's legal theory. It is divided into three parts: the nature of law; constitutional rights, human rights, and proportionality; and the relation between argumentation, correctness, and law.

Constitutional Rights What They Are and What They Ought to Be

Author : Carl Wellman
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This work explains the nature of constitutional rights. It does so by means of an analysis of the nature of law in general, the nature of constitutions, and the nature of rights. It looks in detail at several aspects of constitutional law, rights and institutions, as well as aspects related to public officials, private persons and associations. In addition, the book critically examines a considerable number of debates about whether some actual or proposed constitutional rights ought to be established and maintained in the United States constitution. It then identifies the kinds of reasons that justify or fail to justify constitutional rights. The book advances the debate and makes a contribution to the theory and the practice of constitutional rights.

Constitutional Law in Theory and Practice

Author : David M. Beatty
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David Beatty draws on more than twenty years' teaching experience to produce a comprehensive introduction to the basic rules in constitutional law, accessible to law and non-law students alike. He reviews the leading cases handed down by the Supreme Court of Canada and the Privy Council concerning the original BNA Act of 1867 and the Canadian Charter of Rights enacted in 1982. As well, Beatty reviews many of the most important decisions made by other courts around the world and analyses the function judges and courts perform in liberal democratic societies when they enforce written constitutions including bills of rights. The initial chapter introduces the reader to the subject of constitutional law - what it is all about, what its function is, and how it interacts with the constitutional text. The book goes on to examine Canadian federalism law and the Supreme Court of Canada's experience in the first decade in the life of the Charter of Rights. Beatty also examines significant human rights cases decided by the major courts around the world, in order to illustrate how the same principles and methods of reasoning are used to resolve disputes about the validity of laws no matter what the issue is or where it arises. The book concludes by showing how a theory of constitutional law which emphasizes the social duties which politicians must respect rather than individual rights should be responsive to the concerns of those who are more sceptical about the virtues of law and the courts as well as those who fear the cultural imperialism of western legal concepts. Beatty proposes a radically new way to think about the idea of 'rights,' one which emphasizes the social duties that are inherent in every conception of rights. The book argues that by reorienting our thinking about what rights and the rule of law are all about, it is easier to see that rather than being in conflict or tension with each other, democratic decision making and judicial review are supportive of a common set of values and ideals.

Institutionalized Reason

Author : Matthias Klatt
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This volume gathers leading figures from legal philosophy and constitutional theory to offer a critical examination of the work of Robert Alexy. The contributions explore the issues surrounding the complex relations between rights, law, and morality and reflect on Alexy's distinctive work on these issues. The focus across the contributions is on Alexy's main pre-occupations - his anti-positivist views on the nature of law, his approach to the nature of legal reasoning, and his understanding of constitutional rights as legal principles. In an extended response to the contributions in the volume, Alexy develops his views on these central issues. The volume's juxtaposition of Anglo-American and German perspectives brings into focus the differences as well as the prospect of cross-fertilization between Continental and Anglo-American work in jurisprudence.

Freedom and Time

Author : Jed Rubenfeld
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Should we try to live in the present? Such is the imperative of modernity, Jed Rubenfeld writes in this important and original work of political theory. Since Jefferson proclaimed that 'the earth belongs to the living', since Freud announced that mental health requires people to 'get free of their past', since Nietzsche declared that the happy man is the man who 'leaps into the moment', modernity has directed its inhabitants to live in the present, as if there alone could they find happiness, authenticity, and above all freedom. But this imperative, Rubenfeld argues, rests on a profoundly inadequate, deforming picture of the relationship between freedom and time. Instead, Rubenfeld suggests, human freedom, indeed human being itself, necessarily extends into both past and future; self-government consists of giving our lives meaning and purpose over time. From this conception of self-government, Rubenfeld derives a new theory of constitutional law's place in democracy. Democracy, he writes, is not a matter of governance by the present 'will of the people'; it is a matter of a nation's laying down and living up to enduring political and legal commitments. Constitutionalism is not coun