The Global Model of Constitutional Rights

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Citation:

Möller, K. (2012). The Global Model of Constitutional Rights. Oxford University Press.

Chapter Summary:

1. The Global Model of Constitutional Rights:
   • Introduction: The global model of constitutional rights has evolved significantly since WWII, emphasizing the protection of a broad range of interests while allowing limitations through balancing or proportionality.
   • Key Features: The global model contrasts sharply with traditional philosophical conceptions, emphasizing broad interest protection, positive obligations, horizontal effect, and proportionality.
   • US as an Outlier: The US model of rights is discussed as differing from the global model in significant ways, particularly in its reluctance to adopt proportionality and positive obligations.
2. Negative and Positive Freedom:
   • Negative Freedom: This chapter explores the traditional concept of negative freedom, where individuals are free from interference by others.
   • Positive Freedom: The concept of personal autonomy is introduced, highlighting the idea that true freedom involves the ability to act on one’s own volition.
   • Equality and Human Dignity: The relationship between autonomy, equality, and human dignity is examined, emphasizing their interdependence.
3. Two Conceptions of Autonomy:
   • Excluded Reasons Conception: This conception focuses on autonomy as the absence of certain types of interference or constraints.
   • Protected Interests Conception: This conception views autonomy as the protection of certain fundamental interests, allowing individuals to pursue their own goals.
   • Conclusion: The chapter concludes by comparing the two conceptions and their implications for constitutional rights.
4. The Right to Autonomy:
   • Introduction: The chapter delves into the right to autonomy as a fundamental constitutional right.
   • Implications: Discusses how this right impacts constitutional design and interpretation.
   • Beyond Personal Autonomy: The legitimacy of democracy and general interests are considered in the context of autonomy.
   • Conclusion: Summarizes the findings and implications for constitutional theory.
5. Towards a Theory of Balancing and Proportionality:
   • Introduction: The importance of balancing and proportionality in judicial review is emphasized.
   • Desiderata: Three key desiderata for a theory of balancing and proportionality are discussed.
   • Personal and Political Autonomy: The relationship between personal autonomy and political autonomy is explored.
   • Conclusion: Summarizes the theoretical framework for balancing and proportionality.
6. Balancing:
   • Introduction: This chapter introduces the concept of balancing as a method for resolving conflicts between autonomy interests.
   • Conflicts of Autonomy Interests: Different types of autonomy conflicts are analyzed.
   • Balancing Mechanism: The mechanics and principles of balancing are discussed in detail.
   • Conclusion: Summarizes the findings and their implications for constitutional rights.
7. Proportionality:
   • Introduction: Proportionality is presented as a crucial principle in constitutional rights law.
   • Principle of Proportionality: The stages of proportionality analysis—legitimate goal, suitability, necessity, and balancing—are explained.
   • Conclusion: The chapter concludes with a discussion of the importance of proportionality in achieving just outcomes.
8. Conclusion:
   • Summary: The final chapter synthesizes the main arguments and findings of the book.
   • Future Directions: Possible future developments in the theory and practice of constitutional rights are suggested.

This overview provides a comprehensive understanding of the book’s content, setting the stage for deeper exploration of key concepts, critical analysis, and real-world applications.

Key Concepts:

1. Global Model of Constitutional Rights:
   • The global model sees rights as protecting a broad range of interests but allows for limitations through balancing and proportionality.
   • It contrasts with traditional views which see rights as protecting only especially important interests with a heightened normative force.
2. Negative vs. Positive Freedom:
   • Negative Freedom: Freedom from interference by others.
   • Positive Freedom: Freedom to act on one’s own volition, closely tied to personal autonomy.
   • The concept emphasizes that true freedom involves both non-interference and the capacity for self-determined action.
3. Autonomy:
   • Excluded Reasons Conception: Autonomy as the absence of certain types of interference.
   • Protected Interests Conception: Autonomy as the protection of fundamental interests that allow individuals to pursue their own goals.
   • Autonomy is a central theme in the book, underpinning the discussion of rights and their limitations.
4. Balancing and Proportionality:
   • Balancing: A method for resolving conflicts between different rights or between rights and public interests.
   • Proportionality: A four-stage test used by courts to determine whether a limitation on a right is justified:
     1. Legitimate Goal: The interference must pursue a legitimate objective.
     2. Suitability: The measure must be suitable to achieve the objective.
     3. Necessity: There must be no less restrictive means to achieve the objective.
     4. Balancing: The benefits of the interference must outweigh the harm to the right-holder.
5. Positive Obligations:
   • Constitutional rights impose not only negative obligations (to refrain from interfering) but also positive obligations (to take action to protect rights).
   • Positive obligations require the state to protect individuals from harm by others, including implementing measures to ensure rights are effectively protected.
6. Horizontal Effect:
   • Constitutional rights impact not only the relationship between individuals and the state but also between private individuals.
   • Direct Horizontal Effect: Rights directly create obligations between private individuals.
   • Indirect Horizontal Effect: Rights influence private law through reinterpretation in light of constitutional values.
7. Judicial Review:
   • The role of courts in interpreting and enforcing constitutional rights, balancing them against public interests and other rights.
   • Courts use principles of proportionality to ensure that rights are not unduly restricted.
8. US as an Outlier:
   • US constitutional law is often seen as different from the global model due to its emphasis on historical roots, state action doctrine, absence of positive obligations, and different standards of review (e.g., strict scrutiny).

These key concepts form the foundation of the global model of constitutional rights as discussed by Kai Möller. They provide a framework for understanding how constitutional rights are interpreted and applied in various jurisdictions, emphasizing the importance of balancing individual rights with public interests and other competing rights.

Critical Analysis:

1. Substantive Moral Approach:
   • Möller’s theory emphasizes a substantive moral approach to constitutional rights, contrasting with more formal approaches like Robert Alexy’s. This approach prioritizes political morality over formalistic interpretations, suggesting that constitutional rights should be grounded in broader moral and ethical considerations.
   • Critique: While the substantive moral approach provides a richer understanding of rights, it may lead to subjectivity and inconsistencies in judicial interpretations, potentially undermining legal certainty.
2. Reconstructive Theory:
   • The book advocates for a reconstructive theory of constitutional rights, aiming to reflect actual judicial practices globally. This theory seeks coherence between the moral foundations of rights and their practical application by courts.
   • Critique: A reconstructive approach may sometimes justify existing judicial practices without sufficiently challenging them. It risks becoming overly descriptive, potentially missing opportunities for normative advancements in rights theory.
3. Rights Inflation:
   • Möller discusses the phenomenon of rights inflation, where relatively trivial interests are protected as rights. This broad protection can be seen in the European Court of Human Rights’ interpretation of the right to private life.
   • Critique: Rights inflation might dilute the significance of fundamental rights, making it harder to distinguish between essential and non-essential rights. This could lead to resource allocation issues and potentially trivialize the concept of rights.
4. Balancing and Proportionality:
   • The adoption of proportionality tests by various courts is a central theme. Proportionality ensures that limitations on rights are justified and balanced against competing interests.
   • Critique: While proportionality is a flexible and pragmatic tool, its application can be unpredictable and varies significantly between jurisdictions. This can lead to inconsistencies and challenges in maintaining uniform standards of rights protection.
5. Positive Obligations and Horizontal Effect:
   • The recognition of positive obligations and horizontal effect expands the scope of constitutional rights, ensuring broader protection. Positive obligations compel states to actively protect rights, while horizontal effect ensures rights are respected in private interactions.
   • Critique: These doctrines, while progressive, can impose significant burdens on states and complicate the legal landscape. Implementing positive obligations requires substantial resources and may lead to judicial overreach into policy-making areas traditionally reserved for the legislature.
6. US Model of Rights:
   • Möller positions the US as an outlier, noting its distinct approach to constitutional rights. The US model emphasizes historical rootedness, state action doctrine, and lacks general acceptance of positive obligations and proportionality.
   • Critique: The exclusion of the US model from the global framework might overlook valuable insights and comparative lessons. Additionally, the assertion that the US model is fundamentally different could be debated, as some argue that it aligns more closely with global practices upon deeper examination.
7. Democracy and Separation of Powers:
   • The book explores how the judicial enforcement of constitutional rights relates to democracy and the separation of powers. It emphasizes that a comprehensive theory of rights must integrate attractive conceptions of these values.
   • Critique: Balancing judicial review with democratic principles and separation of powers is inherently complex. Overemphasis on judicial protection of rights might undermine democratic processes, while insufficient judicial oversight could fail to protect minorities against majoritarian excesses.
8. Autonomy and Equality:
   • Autonomy is central to Möller’s theory, linking it to equality and human dignity. He argues for an autonomy-based conception of rights that supports individual self-determination and equality.
   • Critique: While autonomy is a compelling basis for rights, it may conflict with collective interests and social responsibilities. The emphasis on autonomy could also lead to challenges in balancing individual freedoms with community well-being and social cohesion.

Möller’s book provides a comprehensive and thought-provoking analysis of constitutional rights within a global framework. His critical examination of judicial practices and theoretical underpinnings offers valuable insights into the evolving nature of rights protection. However, the implementation of these ideas presents practical and normative challenges that require careful consideration to maintain a balance between individual rights, state obligations, and democratic principles.

Real-World Applications and Examples:

1. European Court of Human Rights (ECtHR) and Positive Obligations:
   • Example: In Osman v. United Kingdom (2000), the ECtHR held that the state has positive obligations to protect individuals from threats posed by others. This case involved a teacher who posed a danger to a student, and the Court found that the UK had not done enough to protect the student’s rights under Article 2 of the ECHR.
   • Application: The concept of positive obligations requires states to take proactive measures to protect rights, impacting policies and practices related to law enforcement, public safety, and social services.
2. Horizontal Effect in German Constitutional Law:
   • Example: In the Lüth case (1958), the German Federal Constitutional Court established the doctrine of horizontal effect, where constitutional rights influence private law. Erich Lüth’s call for a boycott against a film director led to a legal dispute, and the court ruled that constitutional rights, such as freedom of opinion, must be considered in private legal matters.
   • Application: This principle impacts contractual law, employment law, and private disputes, ensuring that constitutional values permeate all aspects of legal relationships, not just those involving the state.
3. Proportionality in Canadian Constitutional Law:
   • Example: In R. v. Oakes (1986), the Supreme Court of Canada developed the Oakes test, a proportionality analysis used to determine whether limitations on rights can be justified. This case involved the Narcotic Control Act and the presumption of innocence.
   • Application: Proportionality analysis guides Canadian courts in balancing individual rights with public interests, influencing cases involving freedom of expression, equality rights, and public safety measures.
4. Autonomy in South African Constitutional Law:
   • Example: In National Coalition for Gay and Lesbian Equality v. Minister of Justice (1998), the South African Constitutional Court struck down laws criminalizing same-sex conduct, emphasizing the right to autonomy and equality under the South African Constitution.
   • Application: This decision highlights how constitutional rights protect personal autonomy and equality, driving legal reforms and influencing policies on LGBTQ+ rights, anti-discrimination laws, and personal freedoms.
5. Balancing and Proportionality in the UK:
   • Example: In R (Daly) v. Secretary of State for the Home Department (2001), the House of Lords applied a proportionality test to assess the legality of a policy that interfered with a prisoner’s right to private correspondence. The court found the policy disproportionate and thus unlawful.
   • Application: The use of proportionality in the UK ensures that government actions do not unduly infringe on individual rights, affecting areas like privacy, freedom of expression, and detention practices.
6. US as an Outlier in Rights Interpretation:
   • Example: In DeShaney v. Winnebago County Department of Social Services (1989), the US Supreme Court held that the state’s failure to protect a child from abuse by his father did not violate the child’s constitutional rights. The Court emphasized that the Constitution protects against state action, not inaction.
   • Application: This case underscores the US’s distinct approach to constitutional rights, impacting the scope of state obligations and the interpretation of protective duties under the Constitution.
7. Impact of Rights Inflation in European Jurisprudence:
   • Example: In Hatton v. United Kingdom (2003), the ECtHR recognized that excessive noise from night flights at Heathrow Airport could violate residents’ right to private life under Article 8 of the ECHR. The Court balanced the residents’ rights against economic interests and public benefits of night flights.
   • Application: Rights inflation in European jurisprudence ensures broad protection for various interests, influencing urban planning, environmental policies, and public health regulations.
8. Judicial Review and Separation of Powers:
   • Example: The German Federal Constitutional Court’s decisions often involve assessing the proportionality of legislative measures, ensuring they do not disproportionately infringe on constitutional rights while respecting the separation of powers.
   • Application: Judicial review based on proportionality strengthens the protection of constitutional rights while maintaining checks and balances within the government structure, influencing legislative practices and executive actions.

These real-world examples illustrate the practical application of the key concepts discussed in Möller’s The Global Model of Constitutional Rights. They demonstrate how theoretical principles are implemented in various jurisdictions, shaping legal practices, policy-making, and the protection of individual rights on a global scale.