Hardback
The Quest for Rights
Ideal and Normative Dimensions
9781788971768 Edward Elgar Publishing
This discerning book explores the concept of human and fundamental rights, originating from the seminal work by the German legal scholar and constitutional lawyer Robert Alexy. Recognising the growing challenges to the idea of the universality of Human Rights, expert scholars consider time-independent conceptual questions which inevitably lie at the heart of any contemporary human rights discourse: What is the justification of balancing and/or trading off fundamental rights against other rights and collective goods? And are there utilitarian considerations that can limit the normative force of human rights?
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Critical Acclaim
Contributors
Contents
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In an era that seeks to challenge the notion of the universality of human rights, this thought-provoking book explores their fundamental nature and considers the work and influence of German legal scholar and constitutional lawyer Robert Alexy, on contemporary jurisprudence and European Union law.
What is the justification of balancing versus trading off fundamental rights against other rights and collective goods? Are there utilitarian considerations that can limit the normative force of human rights? Utilising both “ideal” and “critical” perspectives, this innovative book focuses on those inevitable questions which lie at the heart of any contemporary human rights discourse, as the premise of the dual nature of law is developed. A corresponding ‘normative’ perspective seeks to investigate the broader legal domains of the topic.
This analytical book will be a key resource for students and scholars working in the fields of jurisprudence and legal theory, history and philosophy of law and comparative and EU law alike.
What is the justification of balancing versus trading off fundamental rights against other rights and collective goods? Are there utilitarian considerations that can limit the normative force of human rights? Utilising both “ideal” and “critical” perspectives, this innovative book focuses on those inevitable questions which lie at the heart of any contemporary human rights discourse, as the premise of the dual nature of law is developed. A corresponding ‘normative’ perspective seeks to investigate the broader legal domains of the topic.
This analytical book will be a key resource for students and scholars working in the fields of jurisprudence and legal theory, history and philosophy of law and comparative and EU law alike.
Critical Acclaim
‘The Quest for Rights explores both the meaning of, and justification for, fundamental constitutional rights. It is a quest to establish a strong meaning of the normativity of law, and its role in the social acts of positive law and legal instantiation. The incredibly varied contributions philosophically and critically engage with the thesis of Robert Alexy’s ideal dimension of law, and offer a wide discussion of political and legal reasoning alongside the quest for proportionality in the realization of rights. This masterful book should be considered key reading in legal philosophy.’
– Jean-Yves Cherot, Aix Marseille University, France
‘The Quest for Rights brings together an impressive array of scholars to discuss the central issues of human rights and constitutional law: grounds and legitimacy, pluralism and harmonisation, and proportionality and balancing. It is an admirable collection.’
– Brian H. Bix, University of Minnesota Law School, US
‘The book offers an original discussion about law and rights and substantial contributions to the concept of subjective rights which, as Niklas Luhmann said, “is probably the most important achievement of the evolution of law in modern times.” It covers rights discourse in legal theory, in the human rights regime, in constitutional law and in private law and focuses on the relation between rights and justice, in which the ideal dimension of law is to be found.’
– Thomas Gutmann, University of Muenster, Germany
– Jean-Yves Cherot, Aix Marseille University, France
‘The Quest for Rights brings together an impressive array of scholars to discuss the central issues of human rights and constitutional law: grounds and legitimacy, pluralism and harmonisation, and proportionality and balancing. It is an admirable collection.’
– Brian H. Bix, University of Minnesota Law School, US
‘The book offers an original discussion about law and rights and substantial contributions to the concept of subjective rights which, as Niklas Luhmann said, “is probably the most important achievement of the evolution of law in modern times.” It covers rights discourse in legal theory, in the human rights regime, in constitutional law and in private law and focuses on the relation between rights and justice, in which the ideal dimension of law is to be found.’
– Thomas Gutmann, University of Muenster, Germany
Contributors
Contributors: R. Alexy, M. Borowski, L.P. Coutinho, P. Eleftheriadis, M. Ernits, M. Kaufmann, M. La Torre, A.J. Menéndez, R. Müllerson, L. Niglia, M. Susi, K. Tuori
Contents
Contents:
Introduction
Massimo La Torre, Leone Niglia and Mart Susi
1. A Non-Positivistic Concept of Constitutional Rights
Robert Alexy
2. Radbruch’s Formula and Human Rights
Martin Borowski
3. The Practice-Independency of Human Rights
Luís Pereira Coutinho
4. Constitutional Rights as Moral Judgments
Pavlos Eleftheriadis
5. A Response to Estonian Critics of Principles Theory
Madis Ernits
6. How Right is the Basis of Law
Matthias Kaufmann
7. Turning proportionality upside down: from legitimising principle to critical tool
Agustín José Menéndez
8. Human Rights are not Universal and can not be Natural
Rein Müllerson
9. Between “Institutionalizing Reason” and Private Law: A Comparative Map of Influences
Leone Niglia
10. Balancing fundamental rights on the Internet – proportionality paradigm and private online capabilities
Mart Susi
11. An Existential Foundation for Human Rights— Meaning Before Justification
Massimo La Torre
12. Principles and policies: once more
Kaarlo Tuori
Index
Introduction
Massimo La Torre, Leone Niglia and Mart Susi
1. A Non-Positivistic Concept of Constitutional Rights
Robert Alexy
2. Radbruch’s Formula and Human Rights
Martin Borowski
3. The Practice-Independency of Human Rights
Luís Pereira Coutinho
4. Constitutional Rights as Moral Judgments
Pavlos Eleftheriadis
5. A Response to Estonian Critics of Principles Theory
Madis Ernits
6. How Right is the Basis of Law
Matthias Kaufmann
7. Turning proportionality upside down: from legitimising principle to critical tool
Agustín José Menéndez
8. Human Rights are not Universal and can not be Natural
Rein Müllerson
9. Between “Institutionalizing Reason” and Private Law: A Comparative Map of Influences
Leone Niglia
10. Balancing fundamental rights on the Internet – proportionality paradigm and private online capabilities
Mart Susi
11. An Existential Foundation for Human Rights— Meaning Before Justification
Massimo La Torre
12. Principles and policies: once more
Kaarlo Tuori
Index
