The rapid spread of judicially-enforced constitutional rights has been one of the most dramatic developments in modern law. This book argues that there is now a global model for how such rights should function, and develops an original, philosophically grounded, account of their nature and scope.

A recent judgment by a lower court in Germany brought the problem of ritual male circumcision to the consciousness of the wider public and legal academia. This essay weighs in on this emerging discussion and argues that ritual male circumcision is not covered by parental authority. It first considers and dismisses the best interest of the child test, which is the most widely used test of parental authority in legal practice. Instead, the essay proposes what it terms the autonomy conception (...) of parental authority, according to which parental authority must be exercised such as to ensure that the child will become an autonomous adult. While parents may raise their child in line with their ethical, including religious, convictions, respect for his autonomy requires that this be done in a way that allows the child to later distance himself from these values; this implies, among other things, that irreversible physical changes are impermissible. (shrink)

The last two decades have witnessed a wide-ranging and global discussion of the theory and structure of human and constitutional rights. This debate initially focused on the principle of proportionality and subsequently on the related ideas of the ‘culture of justification’ and the ‘right to justification.’ There is now a far-reaching agreement that both proportionality and justification in human and constitutional rights law are concerned with the reasonableness, alternatively the justification in terms of public reason, of the act under consideration. (...) Thus, reasonableness and/or public reason have assumed a, perhaps the, central place in the theory of human and constitutional rights. (shrink)

There is probably no conceptualization of rights more famous than Ronald Dworkin’s claim that they are “trumps.” This seems to stand in stark contrast to the dominant, proportionality-based strand of rights discourse, according to which rights, instead of trumping competing interests, ultimately have to be balanced against them. The goal of this article is to reconcile Dworkin’s work and proportionality and thereby make a contribution to our understanding of both. It offers a critical reconstruction of Dworkin’s theory of rights which (...) does away with the misleading label of rights as “trumps” and shows that, far from being in conflict with proportionality, properly understood Dworkin’s work supports and supplements that doctrine and provides a much-needed account of its moral foundation as being about human dignity, freedom, and equality. (shrink)

In the jurisprudence of constitutional courts around the world, there is an emerging trend towards an autonomy-based understanding of constitutional rights: increasingly, rights are interpreted as being about enabling people to live autonomous lives, rather than disabling the state in certain ways. This article investigates the conception of autonomy employed by courts by presenting two candidates and examining which of them explains the current practice of constitutional rights law better. The first, labelled the excluded reasons conception of autonomy, claims that (...) a person’s autonomy is violated if he is treated on the basis of certain impermissible—in particular, moralistic or paternalistic—reasons. It is concluded that, while this is a coherent understanding of autonomy, it cannot explain many of the rights that are widely accepted today. The second, the protected interests conception, argues that a person has autonomy interests in controlling certain domains of her life, and offers a scale on which the importance of the various autonomy interests can be assessed. The article demonstrates that this conception is coherent and adequately explains the current practice. The final section briefly explores some implications of this result for a comprehensive reconstructive theory of constitutional rights. (shrink)

The essay responds to a challenge posed by Vanessa MacDonnell and examines the question of stability and change under the global model of constitutional rights. Constitutionalism offers the promise of both stability and justice, but it may seem that there will often be a tension between these values. While some have accused the global model, and in particular proportionality, of overemphasizing justice at the cost of stability, MacDonnell claims that it underemphasizes the necessity of social change. In this response, I (...) argue that in the long run the push for social change and towards justice can be realized only when there is also a certain stability, namely the stubborn democratic insistence that any state action must be reasonably justifiable to those affected by it in terms of their freedom and equality. This conviction lies at the core and will be reinforced by the endorsement of the global model of constitutional rights. (shrink)