Constitutional rights, balancing, and the structure of autonomy

Pavlakos, G. (2011) Constitutional rights, balancing, and the structure of autonomy. Canadian Journal of Law and Jurisprudence, 24(1), pp. 129-154.

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A dispute has broken out about the character of constitutional rights norms. The dispute has been partly fuelled by the publication of Robert Alexy 19s A Theory of Constitutional Rights and appears to be a bit of a family dispute between liberal constitutional lawyers. On the one hand there are those who, in agreement with Alexy, argue that constitutional rights norms possess (necessarily) a teleological (rational) structure, one that requires that they be balanced on any instance of their application. On the other, there are those who argue that constitutional rights norms are deontological constraints, which cannot be balanced against any other normative considerations but, instead, present us with correct standards of moral and legal reasoning. The question is complex and admits of no easy answer. This paper attempts, without reducing the complexity of the issue, to formulate some clear views on the matter. I shall argue that constitutional rights reasoning is a species of rational practical reasoning which that combines both balancing (as Alexy admits) but also the grounds why balancing is appropriate (deontological constraints). Latent the latter kind of reasons, the application of constitutional principles remains an exercise of balancing. When, however those reasons are addressed then balancing becomes 18deontological 19. I shall argue this by showing that deontology and teleology, far from being closed systems of practical deliberation, stand in a continuum when inserted into the wider framework of a model of practical reasoning, akin to what I think informs the Kantian work of Alexy.

Item Type:Articles
Glasgow Author(s) Enlighten ID:Pavlakos, Professor George
Authors: Pavlakos, G.
Subjects:B Philosophy. Psychology. Religion > B Philosophy (General)
K Law > K Law (General)
College/School:College of Social Sciences > School of Law
Journal Name:Canadian Journal of Law and Jurisprudence

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