Kai Möller
- Published in print:
- 2012
- Published Online:
- January 2013
- ISBN:
- 9780199664603
- eISBN:
- 9780191745751
- Item type:
- book
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199664603.001.0001
- Subject:
- Law, Constitutional and Administrative Law, Public International Law
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 ...
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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 characterised 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 U.K., the European Court of Human Rights, Germany, Canada, the U.S., 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, that is, 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 provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.Less
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 characterised 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 U.K., the European Court of Human Rights, Germany, Canada, the U.S., 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, that is, 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 provides a theory of the structure of this justification by proposing original and useful accounts of the important doctrines of balancing and proportionality.
George Letsas
- Published in print:
- 2007
- Published Online:
- January 2009
- ISBN:
- 9780199203437
- eISBN:
- 9780191707773
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199203437.003.0007
- Subject:
- Law, Human Rights and Immigration, Philosophy of Law
This chapter looks at three areas of the European Court's case law in which the structural concept of the margin of appreciation has been used. The first includes cases in which the European Court ...
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This chapter looks at three areas of the European Court's case law in which the structural concept of the margin of appreciation has been used. The first includes cases in which the European Court has interpreted public morals as a justified ground for restricting rights, balancing the applicant's right against conventional morality. The second includes cases in which the Court refrained from finding a violation, on the grounds that the legal issue before it is either politically sensitive at domestic level or controversial amongst contracting states. The third area refers to cases where the Court took protection of welfare interests, like the interest in sleep, to fall within the ambit of the ECHR, asking itself whether interference with these rights has been proportionate. It is argued that the Court's reasoning in these three strands of the case law is not supported by liberal egalitarian principles upon which the ECHR rights are founded.Less
This chapter looks at three areas of the European Court's case law in which the structural concept of the margin of appreciation has been used. The first includes cases in which the European Court has interpreted public morals as a justified ground for restricting rights, balancing the applicant's right against conventional morality. The second includes cases in which the Court refrained from finding a violation, on the grounds that the legal issue before it is either politically sensitive at domestic level or controversial amongst contracting states. The third area refers to cases where the Court took protection of welfare interests, like the interest in sleep, to fall within the ambit of the ECHR, asking itself whether interference with these rights has been proportionate. It is argued that the Court's reasoning in these three strands of the case law is not supported by liberal egalitarian principles upon which the ECHR rights are founded.
Nigel Biggar
- Published in print:
- 2020
- Published Online:
- September 2020
- ISBN:
- 9780198861973
- eISBN:
- 9780191894770
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198861973.003.0014
- Subject:
- Religion, Religion and Society
There is much that is right with rights: paradigmatically, a right is a social institution designed to secure an important element of the human good; the phenomenon of a right is universal, but its ...
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There is much that is right with rights: paradigmatically, a right is a social institution designed to secure an important element of the human good; the phenomenon of a right is universal, but its forms vary according to social priorities and resources; it can promote social flourishing; and it offers a powerful means of holding states to account. However, contemporary rights-talk suffers from a number of problems: the idea that rights are ethically fundamental, rather than the conclusion of all-things-considered ethical deliberation; the refusal in practice to recognise the political and economic contingency of human rights; the imprudence of judges in presuming to invent ethically and politically controversial rights; and rights advocacy that refuses to acknowledge the need for political trade-offs or compromises. These problems have the ill effect of obscuring the importance of the formation of civic virtue, subverting the authority and credibility of rights, corroding military effectiveness, undermining the democratic legitimacy of law, and proliferating publicly expensive rights. The solution to these problems lies in the abandonment of rights-fundamentalism by judges and human rights advocates, and by the general recovery of a richer public discourse about ethics, one which includes talk about the duty and virtue of rights-holders.Less
There is much that is right with rights: paradigmatically, a right is a social institution designed to secure an important element of the human good; the phenomenon of a right is universal, but its forms vary according to social priorities and resources; it can promote social flourishing; and it offers a powerful means of holding states to account. However, contemporary rights-talk suffers from a number of problems: the idea that rights are ethically fundamental, rather than the conclusion of all-things-considered ethical deliberation; the refusal in practice to recognise the political and economic contingency of human rights; the imprudence of judges in presuming to invent ethically and politically controversial rights; and rights advocacy that refuses to acknowledge the need for political trade-offs or compromises. These problems have the ill effect of obscuring the importance of the formation of civic virtue, subverting the authority and credibility of rights, corroding military effectiveness, undermining the democratic legitimacy of law, and proliferating publicly expensive rights. The solution to these problems lies in the abandonment of rights-fundamentalism by judges and human rights advocates, and by the general recovery of a richer public discourse about ethics, one which includes talk about the duty and virtue of rights-holders.
