The Global Model of Constitutional Rights
Kai Möller - OUP Oxford, 2012
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| Anteprima |
Since
the end of the Second World War and the subsequent success of
constitutional judicial review, one particular model of constitutional
rights has had remarkable success, first in Europe and now globally.
This global model of constitutional rights is characterized by an
extremely broad approach to the scope of rights (sometimes referred to
as 'rights inflation'), the acceptance of horizontal effect of rights,
positive obligations, and increasingly also socio-economic rights, and
the use of the doctrines of balancing and proportionality to determine
the permissible limitations of rights. Drawing on analyses of a broad
range of cases from the UK, the European Court of Human Rights, Germany,
Canada, the US, and South Africa, this book provides the first
substantive moral, reconstructive theory of the global model. It shows
that it is based on a coherent conception of constitutional rights which
connects to attractive accounts of judicial review, democracy and the
separation of powers. The first part of the book develops a theory of
the scope of rights under the global model. It defends the idea of a
general right to personal autonomy: a right to everything which,
according to the agent's self-conception, is in his or her interest. The
function of this right is to acknowledge that every act by a public
authority which places a burden on a person's autonomy requires
justification. The second part of the book proposes a theory of the
structure of this justification which offers original and useful
accounts of the important doctrines of balancing and proportionality.
