Ways of Solving Conflicts of Constitutional Rights: Proportionalism and Specificationism

Ratio Juris 25 (1):31-46 (2012)
This paper deals with the question of the conflict of constitutional rights with regard to basic rights. Two extreme accounts are outlined: the subsumptive approach and the particularistic approach, that embody two main conceptions of practical rationality. Between the two approaches there is room for a range of options, two of which are examined: the proportionalist approach, which conserves the scope of rights restricting their stringency, and the specificationist approach, which preserves the stringency of rights restricting their scope. I will present arguments in defence of the latter
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DOI 10.1111/j.1467-9337.2011.00501.x
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R. M. Dworkin (1988). Law's Empire. Harvard University Press.

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