Authors: Robert Alexy, Julian Rivers
ISBN-13: 9780199584239, ISBN-10: 0199584230
Format: Paperback
Publisher: Oxford University Press, USA
Date Published: February 2010
Edition: (Non-applicable)
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.
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.
Abbreviations | ||
A Theory of Constitutional Rights and the British Constitution | ||
A Note on this Translation | ||
Introduction | 1 | |
1 | The Content and Purpose of a Theory of Constitutional Rights | 5 |
I | The Concept of a General Legal Theory of the Constitutional Rights of the Basic Law | 5 |
II | Constitutional Rights Theory and Constitutional Rights Theories | 11 |
III | Constitutional Rights Theory as Structural Theory | 13 |
2 | The Concept of a Constitutional Rights Norm | 19 |
I | On the Concept of a Norm | 20 |
II | The Constitutional Rights Norm | 30 |
3 | The Structure of Constitutional Rights Norms | 44 |
I | Rules and Principles | 44 |
II | Three Models | 69 |
III | Theories of Principles and Values | 86 |
4 | Constitutional Rights as Subjective Rights | 111 |
I | On the Current Debate about Subjective Rights | 111 |
II | A System of Basic Legal Positions | 120 |
III | The Complete Constitutional Right | 159 |
5 | Constitutional Rights and Legal Status | 163 |
I | Jellinek's Theory of Legal Status | 163 |
II | On the Critique of Jellinek's Status Theory | 173 |
6 | The Limits of Constitutional Rights | 178 |
I | The Concept and Types of Constitutional Rights Limit | 178 |
II | The Scope and Limits of Constitutional Rights | 196 |
III | Limitation and Outworking | 217 |
7 | The General Right to Liberty | 223 |
I | The Concept of a General Right to Liberty | 223 |
II | A Formal-Material Conception of the General Right to Liberty | 226 |
III | Spheres of Protection and Implied Liberties | 236 |
IV | Problems with the General Right to Liberty | 243 |
8 | The General Right to Equality | 260 |
I | Equality in the Application and Creation of Law | 260 |
II | The Structure of the Requirement of Equality in the Creation of Law | 262 |
III | The Formulae of the Federal Constitutional Court | 265 |
IV | Similar and Differential Treatment | 270 |
V | The Principle of Equality and Evaluation | 273 |
VI | Legal and Factual Equality | 276 |
VII | The Structure of Equality Rights as Subjective Rights | 285 |
9 | Rights to Positive State Action (Entitlements in the Wide Sense) | 288 |
I | Basic Terms and Concepts | 288 |
II | Protective Rights | 300 |
III | Rights to Organization and Procedure | 314 |
IV | Entitlements in the Narrow Sense (Social Constitutional Rights) | 334 |
10 | Constitutional Rights and Constitutional Rights Norms in the Legal System | 349 |
I | The Fundamental Nature of Constitutional Rights Norms | 349 |
II | Third Party, or Horizontal, Effect | 351 |
III | The Legal System and Constitutional Rights Reasoning | 365 |
Postscript | 388 | |
App | The Constitutional Rights Provisions of the German Basic Law | 426 |
Bibliography | 434 | |
Index | 457 |