ARGUING FUNDAMENTAL RIGHTS Law and Philosophy Library VOLUME 77 Managing Editors FRANCISCO J. LAPORTA,Department of Law, Autonomous University of Madrid, Spain ALEKSANDER PECZENIK†,Department of Law, University of Lund, Sweden FREDERICK SCHAUER,John F. Kennedy School of Government, Harvard University, Cambridge, Mass., U.S.A. Former Managing Editors AULIS AARNIO, MICHAEL D. BAYLES†, CONRAD D. JOHNSON†, ALAN MABE Editorial Advisory Board AULIS AARNIO,Research Institute for Social Sciences, University of Tampere, Finland ZENON BAN´KOWSKI,Centre for Law and Society, University of Edinburgh PAOLO COMANDUCCI,University of Genoa, Italy ERNESTO GARZÓN VALDÉS,Institut für Politikwissenschaft, Johannes Gutenberg Universität Mainz JOHN KLEINIG, Department of Law, Police Science and Criminal Justice Administration, John Jay College of Criminal Justice, City University of New York NEIL MacCORMICK,European Parliament, Brussels, Belgium WOJCIECH SADURSKI,European University Institute, Department of Law, Florence, Italy ROBERT S. SUMMERS,School of Law, Cornell University CARL WELLMAN,Department of Philosophy, Washington University ARGUING FUNDAMENTAL RIGHTS Edited by AGUSTÍN JOSÉ MENÉNDEZ University of León, Spain and University of Oslo, Norway ERIK ODDVARERIKSEN University of Oslo, Norway A C.I.P. Catalogue record for this book is available from the Library of Congress. ISBN-10: 1-4020-4918-8 (HB) ISBN-13: 978-1-4020-4918-7 (HB) ISBN-10: 1-4020-4919-4 (e-book) ISBN-13: 978-1-4020-4919-6 (e-book) Published by Springer, P.O. Box 17, 3300 AA Dordrecht, The Netherlands. www.springer.com Printed on acid-free paper All Rights Reserved © 2006 Springer No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written permission from the Publisher, with the exception of any material supplied specifically for the purpose of being entered and executed on a computer system, for exclusive use by the purchaser of the work. CONTENTS List of Contributors vii Introduction 1 Agustín José Menéndez and Erik Oddvar Eriksen I. A Theory of Constitutional Rights Revisited 1. Discourse Theory and Fundamental Rights 15 Robert Alexy II. Structural Perspectives 2. Fundamental Rights Principles: Disciplining the Instrumentalism of Policies 33 Kaarlo Tuori 3. Nine Critiques to Alexy’s Theory of Fundamental Rights 53 Massimo La Torre 4. Democratic or Jurist-Made Law? 69 Erik Oddvar Eriksen 5. On Alexy’s Weight Formula 101 Carlos Bernal Pulido III. Substantive Issues 6. Who’s Afraid of the Total Constitution? 113 Mattias Kumm v vi CONTENTS IV. Applied Perspectives 7. Fundamental Rights in the UK Human Rights Act 141 Julian Rivers 8. Some Elements of a Theory of European Fundamental Rights 155 Agustín José Menéndez V. Bibliography of Robert Alexy 9. The Work of Robert Alexy 187 Table of Cases 203 Bibliography 207 Name Index 215 Subject Index 217 LIST OF CONTRIBUTORS Robert Alexy is Professor of Public Law and Legal Philosophy at the Christian-Albrechts University of Kiel. He is the author of the classics A Theory of Legal Argumentation (1989), A Theory of Constitutional Rights (2002) and TheArgument from Injustice(2002). Carlos Bernalis Professor of Legal Theory at the Universidad Externado de Colombia and researcher at the Institute of Constitutional Studies Carlos Restrepo at the same University. He is the author of El principio de propor- cionalidad y los derechos fundamentales(2003). Erik Oddvar Eriksenis Professor of Political Theory at ARENA and at the Center for Professional Studies at the University of Oslo. He is the author of Demokratiets sorte hull(2001) and Understanding Habermas(2003). Mattias Kumm is Professor of Law at the New York University School of Law. He is the author of Who is the final arbiter of constitutionality in Europe (1999) and The Jurisprudence of Constitutional Conflict(2005). Massimo La Torreis Professor of Legal Philosophy at the University Magna Grecia of Catanzaro. He is the author of Disavventure del Diritto Soggetivo (1996) and La Crisi del Novecento. Giuristi e filosofi del crepuscolo di Weimar(2006). Agustín José Menéndez is Senior Researcher at the University of León (Spain) and research fellow of the RECON network at the University of Oslo. He is the author of Justifying Taxes(2001). Julian Rivers is Lecturer at the Faculty of Social Sciences and Law at the University of Bristol. He is the author of Blasphemy Law in the Secular State (2000) and editor and translator of A Theory of ConstitutionalRights(2002). Kaarlo Tuori is Professor of Jurisprudence, Departament of Public Law, at the University of Helsinki. He is also member of the Venice Commission. He is the author of Law and Power: Critical and Socio-Legal Essays(1997) and Critical Legal Positivism(2002). vii A. J. Menéndez and E. O. Eriksen (eds.), Arguing Fundamental Rights,vii–viii. © 2006 Springer. AGUSTÍN JOSÉ MENÉNDEZ AND ERIK ODDVAR ERIKSEN INTRODUCTION I do take law very seriously, deeply seriously, because fragile as reason is, and limited as law is as the expression of the institutionalised medium of reason, that’s all we have standing between us and the tyranny of mere will and the cruelty of unbridled, undisciplined feeling. Felix Frankfurter This book is an exploration of one of the outstanding works in contemporary legal and constitutional theory, Robert Alexy’s A Theory of Constitutional Rights, (hereinafter A Theory).1This is done by means of a critical analysis2of the structural elements of Alexy’s theory, an appraisal of its substantial impli- cations, and an assessment of its applied relevance. For different reasons and ondifferent grounds, the contributors to this volume conclude that A Theoryis a chief theoretical achievement, which has made a major contribution to the development of a normatively grounded, post-positivistic analysis of constitu- tional law.3 It has not only played a major role in the transcendence of the characterisation of legal reasoning (and very especially, constitutional legal reasoning) as a mere exercise in hermeneutics or else in judicial legislation.4It also constitutes a superior alternative to black-letter legal dogmatics, critical legal studies, economic analysis of law and originalism, all of which end up disconnecting law and justice.5 I. WHY ARGUING FUNDAMENTAL RIGHTS In addition to numerous book chapters and journal articles (which are listed in the bibliography which closes this volume), Robert Alexy is author of three major works of legal theory. In 1978 he published the first edition of his ground-breaking Theorie der Juristischen Argumentation,6 perhaps the book which has been and keeps on being more influential in the flourishing of stud- ies on legal argumentation and legal reasoning in the last two decades of the twentieth century.7 Here discourse theory is applied to law and the constitu- tional state,8which leads to the characterisation of legal reasoning as a reason- giving practice which allows for the rational assessments of norms. In 1992 he published Begriff und Geltung des Rechts,9 which has brought clarity in the 1 A. J. Menéndez and E. O. Eriksen (eds.), Arguing Fundamental Rights,1–12. © 2006 Springer. 2 AGUSTÍNJOSÉMENÉNDEZANDERIKODDVARERIKSEN muddled question of the relationship between law and morality, or more precisely, between moral, ethical, prudential and legal reasoning. Law is described as a system of legal norms that claims to be right or just. The cor- rectness of legal norms is thus internally related to justice. Extremely unjust norms are not only dubiously legitimate in normative terms, but they are also legally invalid.10Between these two works, Alexy published A Theory, which, as will be considered in more detail in the remaining of this introduction, has been recognised as a major contribution to both structural and substantive the- ories on fundamental rights, and as a master general exposition of German constitutional law. Given the breadth and depth of his work, it is hard not to conclude that Alexy is one of the major modern legal philosophers, on a par with Hans Kelsen, H.L.A. Hart, Ota Weinberger, Ronald Dworkin, Neil MacCormick and Joseph Raz. There are four main reasons why this volume focuses on A Theory. It seems to us that Alexy has managed to develop a structural and substantial general theory of fundamental rights, the applied relevance of which goes clearly beyond the interpretation of the fundamental rights provision of the 1949 German Constitution (as tested in the fourth part of the book). We are further convinced that the theory and application of fundamental rights is one of the key questions, if not the key question, in democratic, constitutional states. First, A Theory is above all a sophisticated and exact structural theory of fundamental rights, which enhances analytical clarity in legal reasoning. Alexy’s characterisation of the scope of rights and rights limits, his examina- tion of the question of the inalienable core of fundamental rights, and his three-fold distinction between rights to something, liberties and powers are among the many analytical contributions of the book. All of them are closely related to the central insight of A Theory, namely, that fundamental rights are mainly and foremostly principles, not rules (the latter being characterised by not allowing exceptions to their application).11Principles are depicted as opti- misation commands to be weighed and balanced according to the proportion- ality principle in a particular situation, and not as deontological levers. This is due to the fact that most reasoning on fundamental rights revolves around the solving of conflicts betweennorms that call for balancing and accommodation of different principles, and not the unconditional application of rules. In this regard, his reconstruction of the principle of proportionality has proved a last- ing contribution to the literature, regarded as such even by Alexy’s critics (the second section of the book is indeed representative of such criticisms). Second, A Theoryalso contains elements of a substantive theoryof funda- mental rights. This is so on two different (but related) accounts. On the one hand, analytical sophistication allows Alexy to draw conclu- sions which are relevant to a substantive theory of fundamental rights. To put