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Law & Ethics of Human Rights

Editor-in-Chief: Stopler, Gila

Editorial Board: Benvenisti, Eyal / Cohen-Eliya, Moshe / Macedo, Stephen / Rosenblum, Nancy


CiteScore 2018: 0.19

SCImago Journal Rank (SJR) 2018: 0.118
Source Normalized Impact per Paper (SNIP) 2018: 0.225

Online
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1938-2545
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Volume 4, Issue 1

Issues

The Construction of Constitutional Rights

Robert Alexy
Published Online: 2010-04-30 | DOI: https://doi.org/10.2202/1938-2545.1042

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: Weight Formula; constitutional rights; rational legal argument; principles; rules; balancing; proportionality test

About the article

Published Online: 2010-04-30


Citation Information: Law & Ethics of Human Rights, Volume 4, Issue 1, Pages 21–32, ISSN (Online) 1938-2545, DOI: https://doi.org/10.2202/1938-2545.1042.

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