A Theory of Constitutional Rights

In any country where there is a Bill of Rights, constitutional rights reasoning is an important part of the legal process. As more and more countries adopt Human Rights legislation and accede to international human rights agreements, and as the European Union introduces its own Bill of Rights, judges struggle to implement these rights consistently and sometimes the reasoning behind them is lost. Examining the practice in other jurisdictions can be a valuable guide. Robert Alexy's work reconstructs the reasoning behind the jurisprudence of the German Basic Law and in doing so provides a theory of general application to all jurisdictions where judges wrestle with rights adjudication. In considering the features of constitutional rights reasoning, the author moves from the doctrine of proportionality, procedural rights and the structure and scope of constitutional rights, to general rights of liberty and equality and the problem of horizontal effect.

Review:

This work provides one of the most penetrating, analytically refined, and influential general accounts of constitutional rights available. American realists will recognize the structure of rights it proposes as functional and pragmatic. Comparative constitutional jurists will recognize it as a reconstruction of what is, perhaps, the dominant understanding of constitutional rights in the world. It would be a mistake for constitutional scholars of any tradition not to engage this book seriously. Mattias Kumm Juian Rivers deserves credit not only for a text which does full justice to Alexy's renowned lucidity, but also for an introduction which argues persuasively for the relevance of Alexy's understanding of constitutional rights. Legal Studies ... a valuable contribution to our appreciation of the wider context in which both the German Federal Constitutional Court (FCC) and US Supreme Court operate. European Public Law ... provide(s) us with a stimulating theoretical account of the method of adjudication employed by the judges of the FCC, as well as some insight into the workings and background assumptions of German constitutional law. European Public Law ... reveal(s) numerous and fruitful points of contact between American and German constitutional law on the one hand, and the emerging case-law under the HRA on the other. European Public Law ... challenge(s) us to question some assumptions about UK public law and the role of the judge within it. European Public Law ... provides a series of challenging arguments that draw together fine theoretical developments with a clear analysis of the German case law. Undoubtedly, it constitutes a building block of every serious discussion on constitutional rights and everyone who is interested in these issues should compare his views with Alexy's. His subtle analytical distinctions would shed much light over utterly obscure issues such as horizontality, proportionality, scope, and limits of rights. Moreover, a British audience puzzled by the role of a new Bill of Rights would find much relief from a comparative insight on questions of rights. The strength of this book is that it provides a sound framework for initiating a discussion on constitutional rights. International and Comparative Law Quarterly ... provides an excellent analytical framework to deal with the most difficult constitutional rights issues. International and Comparative Law Quarterly