A Theory of Constitutional RightsAutor Robert Alexy Traducere de Julian Rivers
en Limba Engleză Hardback – 29 aug 2002
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 classic work, available now for the first time in English 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. A new postscript written for the English edition considers critiques of the Theory since it first appeared in 1985, focusing in particular on the discretion left to legislatures and in an extended introduction the translatorargues that the theory may be used to clarify the nature of legal reasoning in the context of rights under the British Constitution. This book will be of central interest to all legal and constitutional theorists and human rights scholars.
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.
... a valuable contribution to our appreciation of the wider context in which both the German Federal Constitutional Court (FCC) and US Supreme Court operate.
... 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.
... 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.
... challenge(s) us to question some assumptions about UK public law and the role of the judge within it.
... 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.
Robert Alexy is Professor of Public Law and Legal Philosophy at the Christian Albrechts University, Kiel, Germany. Between 1994 and 1998 he was President of the German Section of the International Association for Philosophy of Law and Social Philosophy. He is known and admired worldwide as a leading philosopher.Julian Rivers was appointed Lecturer in Law at the University of Bristol after studying at the University of Cambridge and the University of Gottingen. This is his first book.