Balancing and the structure of constitutional rights

International Journal of Constitutional Law

Volumn 5, Issue 3, 2007, Pages 453-468

  Möller, Kai ^a,b  

^a UNIVERSITY OF FREIBURG   (Germany)

^b UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547953418     PISSN: 14742640     EISSN: 14742659     Source Type: Journal    
DOI: 10.1093/icon/mom023     Document Type: Review

References (42)

1. Mattias Kumm, Political Liberalism and the Structures of Rights: On the Place and Limits of the Proportionality Requirement, in LAW, RIGHTS, DISCOURSE: THEMES OF THE WORK OF ROBERT ALEXY (Stanley Paulson & George Pavlakos eds., Hart 2007).
2. ROBERT ALEXY, THEORIE DER GRUNDRECHTE (Suhrkamp 1985).
3. ROBERT ALEXY, A THEORY OF CONSTITUTIONAL RIGHTS (Julian Rivers, trans. Oxford Univ. Press 2002) [hereinafter TCR].
4. Mattias Kumm, Constitutional Rights as Principles: On the Structure and Domain of Constitutional Justice, 2 INT'L. J. CONST. L. (I-CON) 574 (2004).
5. TCR at 44.
6. TCR at 47-48.
7. TCR at 48.
8. RONALD DWORKIN, The Model of Rules I, in TAKING RIGHTS SERIOUSLY 22-24 (Duckworth 1977).
9. TCR at 57.
10. TCR at 66, footnote omitted.
11. It becomes normative, however, when we ask whether another way of achieving the same result is less intensive. For example, one could argue that slightly stronger penalties for certain crimes would make the collection of some data unnecessary; and then the question would be whether stronger penalties or the collection of data are less restrictive, which is obviously a normative question.
12. TCR at 75.
13. TCR at 80-86.
14. TCR at 6.
15. The literal translation of the German title would be "A theory of the basic rights," thus indicating that the book is about the so-called basic rights of the German Basic Law.
16. TCR at 6.
17. TCR at 11-13.
18. Alexy thinks that he can, simultaneously, claim that rules are "fixed points" and claim that, like principles, they operate only prima facie. These two claims seem incompatible because the fact that something operates only prima facie seems plainly to indicate that it is the opposite of a fixed point. Alexy seems to think that the cases in which an exception clause has to be added to a (prima facie) rule are so rare or exceptional that it does not "really" affect their character as fixed points, but this remains unconvincing.
19. TCR at 47.
20. TCR at 66.
21. Ronald Dworkin, Rights As Trumps, in THEORIES OF RIGHTS 153 (Jeremy Waldron ed., Oxford Univ. Press 1984).
22. One exception Dworkin acknowledges is that rights can be abridged in order to "prevent a clear and serious danger," but only "so far as is absolutely necessary to prevent it"; see his FREEDOM'S LAW (Oxford Univ. Press 1996) 353.
23. This qualification might be taken to indicate that Dworkin does, in fact, subscribe to some form of balancing, attaching an extremely high weight to the right. There is an ambiguity in Dworkin's theory of rights, but it would be wrong to try to dissolve it by concluding that he endorses balancing: That would distort the very point of the theory, which is that rights are a matter of principle and not policy and thus are concerns of a different kind. Also, Dworkin has again and again explicitly rejected a balancing approach to rights; see, for example, DWORKIN, supra note 8, at 197-200;
24. RONALD DWORKIN, Is DEMOCRACY POSSIBLE HERE (Princeton Univ. Press 2006) 31-32, 48-49.
25. DWORKIN, supra note 8, at 365.
26. ROBERT NOZICK, ANARCHY, STATE, and UTOPIA (Blackwell 1974) 30-31.
27. Some might object to this conclusion on the ground that Nozick would be inalterably opposed to a welfare state under any conditions. However, I believe that, in a hypothetical scenario where the people expressed their desire for the benefits of the welfare state, and Bill Gates donated billions to finance institutions and distribution networks to provide those benefits, thus eliminating the element of taxation, Nozick's objections would be satisfied.
28. TCR at 66.
29. Dworkin warns against rashly assuming conflicts between values, arguing that, before we accept that such a conflict exists, we must be sure we have the correct understanding of the values involved; it may be that, on a better understanding of what makes the particular values valuable, there willbe no conflict. See RONALD DWORKIN, JUSTICE IN ROBES (Harvard Univ. Press 2006) 105-116. This is an interesting argument, but it does not affect the point made here. Even for Dworkin, it makes sense to speak of a conflict between, say, the right to freedom of expression, on the one hand, and ordinary policy concerns, on the other; this conflict must be resolved in accordance with his theory of rights as trumps.
30. TCR at 71. This terminology will be used henceforth when speaking of rules or principles in the Alexian sense.
31. TCR at 59.
32. Kumm, supra note 4, at 590.
33. TCR at 72-76.
34. For an English summary of the German doctrines on the right to dignity, see Eckart Klein, Human Dignity in German Law, in THE CONCEPT OF HUMAN DIGNITY IN HUMAN RIGHTS DISCOURSE 145 (Eckart Klein & David Kretzmer eds., Brill 2002).
35. TCR at 62-64.
36. "Luftsicherheitsgesetz of January 11 2005, Bundesgesetzblatt 2005I.
37. BVerfG, 1 BvR 357/05 of February 15 2006. The German text of the decision is available at the Court's web site, http://www.bundesverfassungsgericht.de.
38. For a summary of the case in English, the Court's reasoning, and a critical analysis, see Raymond Youngs, Germany: Shooting Down Aircraft and Analyzing Computer Data (forthcoming in I-CON)
39. and Kai Möller, On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the Federal Constitutional Court, 51 PUBLIC LAW 457-514 (2006).
40. Winfried Brugger, May Government Ever Use Torture? Two Responses from German Law, 48 AMER. J. COMP. L. 661 (2000).
41. See, e.g., Gunter Jerouschek & Ralf Kölbel, Folter von Staats wegen? [Torture in the name of the state] 58 JURISTENZEITUNG 619 (2003).
42. Kumm, supra note 4, at 595.