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Full Description
The book focuses on Robert Alexy's theory of constitutional rights. Alexy systematically presented the theory in his seminal book "Theorie der Grundrechte" (1985; Engl. translation "Theory of Constitutional Rights, 2002) and continued to develop it in numerous subsequent articles. Arguably still the most influential theory of constitutional rights, it has found widespread academic support, as well as recognition in several constitutional jurisdictions. On the other hand, it has also been the object of considerable criticism. The aim of this book is to outline the central aspects of Alexy's theory as he sees them, and to further develop the principles of constitutional, fundamental, and human rights by applying a constructive criticism of his theory.
Contents
Constitutional Rights, Proportionality, and Argumentation.- The Role of Morality in Balancing Constitutional Rights.- Constitutional discretion and proportionality: the positivistic weight formula.- Proportionality and meta-weighing of reasons.- Limited Balancing. The Principle of Human Dignity and its Inviolability.- Balancing Rights and Interests. On Schauer's Asymmetry Thesis.- To Balance or not to Balance: The Quest for the Essence of Rights.- An argument for the proportionality test in concrete: challenging the margin of appreciation doctrine from a gender perspective in intersection with poverty.- Proportionality Test and Constitutional Social Rights Adjudication.- "Thou shalt balance" - Making sense of the delegation of the proportionality testing to the end users of law.
