Alexy’s Theory of Constitutional Rights and the Problem of Judicial Review
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Description
In A Theory of Constitutional Rights Robert Alexy provides an account of the structure and domain of constitutional rights. The core claim relating to the structure of rights is that constitutional rights are principles and that proportionality analysis is necessarily at the heart of reasoning about what principles require in real contexts. The core claim relating to the proper domain or scope of rights is that there are good grounds for recognizing a general right to liberty and a general right to equality. A conception of rights that shares these two features defines what I will refer to in the following as the ‘Rationalist Human Rights Paradigm’ (RHRP). Both features raise controversial questions and have been the focus of considerable debate. For the purpose of this chapter I will leave those debates aside and simply assume that these features correctly describe normatively attractive and widespread features of constitutional rights practice in liberal democracies. The focus here is on the institutional question: if rights do have the structure and occupy the domain that Alexy suggests, what is the justification for courts setting aside legislation in the name of adjudicating rights? That question is tied to the classical chestnut of an issue that is the legitimacy of judicial review. But it becomes more focused and specific when tied to the particular theory of rights that Alexy defends. The structure of a theory of rights has direct implications for the understanding of the practice of judicial review. What then are the specific problems and best justifications of a practice of judicial review that embraces the RHRP? I will address that question in three steps. In a first step I will seek to deepen the puzzle and illustrate the counterintuitive nature of judicial review that has such a structure. Given the nature of questions that the judiciary must address when applying the proportionality test, and given that a right to liberty and equality are implicated in most of what public authorities do, such a choice seems to raise serious concerns relating to both democratic legitimacy and institutional competence. In a second step I will describe and assess the way Alexy addresses these issues in a recent article in ICON. I will argue that, notwithstanding some necessary clarifications and qualifications, he succeeds in establishing that judicial review is in principle compatible with representative democracy. But he does not succeed in making an affirmative case for judicial review. In order to make that case, Alexy’s account needs to be complemented by other arguments. In a third part I will develop the broad outlines of an affirmative argument for judicial review. At the heart of the affirmative case for judicial review is the claim that it institutionalizes a liberal right to justification.
Source Publication
Institutionalized Reason: The Jurisprudence of Robert Alexy
Source Editors/Authors
Matthias Klatt
Publication Date
2012
Recommended Citation
Kumm, Mattias, "Alexy’s Theory of Constitutional Rights and the Problem of Judicial Review" (2012). Faculty Chapters. 1061.
https://gretchen.law.nyu.edu/fac-chapt/1061
