The Construction of Constitutional Rights

Law and Ethics of Human Rights 4 (1):21-32 (2010)
This article calls for the construction of constitutional rights as principles, rather than as rules. The rule construction conceives subsumption or classification as the appropriate form for the application of constitutional rights. It attempts, in this way, to avoid the problems associated with balancing. By contrast, the principles construction argues that balancing is inevitable and unavoidable. Balancing is at the very core of the proportionality test. The debate over the construction of constitutional rights is, therefore, first and foremost a debate over proportionality analysis. The central objection to the principles construction is that balancing and, with it, the proportionality test, is irrational. This irrationality objection is countered by analysis of the formal structure of balancing; the analysis shows that balancing is a case of rational legal argument that is explicated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides a demonstration of how and why balancing is possible as a form of rational legal argument. It also makes it possible to show that proportionality analysis endangers neither the power nor the force of constitutional rights
Keywords No keywords specified (fix it)
Categories (categorize this paper)
DOI 10.2202/1938-2545.1042
 Save to my reading list
Follow the author(s)
Edit this record
My bibliography
Export citation
Find it on Scholar
Mark as duplicate
Request removal from index
Revision history
Download options
Our Archive

Upload a copy of this paper     Check publisher's policy     Papers currently archived: 30,248
External links

Setup an account with your affiliations in order to access resources via your University's proxy server
Configure custom proxy (use this if your affiliation does not provide a proxy)
Through your library
References found in this work BETA

No references found.

Add more references

Citations of this work BETA
Legal Certainty and Correctness.Robert Alexy - 2015 - Ratio Juris 28 (4):441-451.

Add more citations

Similar books and articles
Specifying Constitutional Rights.John Oberdiek - 2010 - Constitutional Commentary 271 (1).
The Dual Nature of Law.Robert Alexy - 2010 - Ratio Juris 23 (2):167-182.
Added to PP index

Total downloads
105 ( #49,238 of 2,192,159 )

Recent downloads (6 months)
6 ( #33,506 of 2,192,159 )

How can I increase my downloads?

Monthly downloads
My notes
Sign in to use this feature