The Global Model of Constitutional Rights

Citation

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

Chapter Summary

Context and Argument

Since the Second World War, and with the success of constitutional judicial review, one pattern of rights adjudication has spread from Europe to much of the world. Möller calls it the global model. It has four recurring features: a very wide approach to what counts as a right (sometimes called "rights inflation"), the acceptance of horizontal effect, positive obligations and increasingly socio-economic rights, and the use of balancing and proportionality to decide whether a limit on a right is permissible. The United States is the notable outlier.

The book offers what it describes as the first substantive moral, reconstructive theory of this model. It draws on cases from the United Kingdom, the European Court of Human Rights, Germany, Canada, the United States and South Africa, and argues that the model rests on a coherent conception of rights that fits attractive accounts of judicial review, democracy and the separation of powers. The text is about 210 pages and has two parts, preceded by an introductory chapter.

Chapter 1: The Global Model of Constitutional Rights

The opening chapter describes the global model, contrasts it with the traditional philosophical view that rights protect only especially important interests, and sets out the plan of the two parts that follow. It also explains why the American approach differs.

Part I: The Scope of Rights

The first part develops a theory of what rights protect. It contains the chapters Negative and Positive Freedom, Two Conceptions of Autonomy and The Right to Autonomy. Möller moves from the familiar contrast between negative and positive freedom to the idea of personal autonomy, and distinguishes two conceptions of it, the excluded reasons conception and the protected interests conception. He then defends a general right to personal autonomy: a right to everything that, according to the agent's self-conception, is in his or her interest. The function of the right is to ensure that every act of a public authority that burdens a person's autonomy requires justification. The part also considers how personal autonomy relates to equality, human dignity and political autonomy and democratic legitimacy.

Part II: The Structure of Justification

The second part proposes a theory of how burdens on autonomy are justified. A chapter on the aims of such a theory is followed by Balancing, which concerns conflicts between autonomy interests, and Proportionality, which sets out the stages of the test familiar from constitutional courts: a legitimate goal, suitability, necessity and balancing in the strict sense. The book ends with a concluding chapter, a bibliography and an index.

Key Concepts

Chapter 1

• Global model of constitutional rights: the pattern of wide scope for rights, horizontal effect, positive obligations and proportionality review found across many jurisdictions.
• Rights inflation: the extension of rights to a very broad range of interests, which the author treats as a feature to be explained and not a defect.

Part I

• Personal autonomy: the ability to live according to one's own conception of one's life.
• Excluded reasons and protected interests conceptions: two ways of understanding what the protection of autonomy involves.
• General right to personal autonomy: the claim that any burden placed by public authority on a person's pursuit of their interests requires justification.

Part II

• Balancing: weighing conflicting autonomy interests against each other.
• Proportionality: the structured test for justifying interference with a right.
• Justification stage: the second step of rights analysis, after the question of scope.

Critical Analysis

Strengths

• An explicit theory of a widespread practice. Many accounts of constitutional rights are written from within one national system. This book starts from the practice found in many jurisdictions and offers a single moral theory to explain it.
• Rich use of case law. Cases from the UK, the European Court of Human Rights, Germany, Canada, the US and South Africa are analysed to test the theory, so readers get a comparative survey as well as an argument.
• Clear two-part design. The division between scope (what a right protects) and justification (when a limit is permissible) mirrors how courts structure their reasoning, which makes it useful when reading judgments.
• Connects rights to democracy. The publisher stresses that the theory links to accounts of judicial review, democracy and the separation of powers.

Limitations

• Demanding for a first book. It is a theoretical monograph that engages with the philosophical literature, including Raz and Dworkin among the writers whose names recur in the text. It is not a survey of the law of any one country.
• Contestable central claim. The general right to autonomy is a controversial idea, and the book is best read as one position in a debate. Critics of balancing and of wide rights should be read next.
• Date and selection. The case law dates from before 2012, and the choice of jurisdictions leaves out much of Asia, Latin America and the rest of Africa.

Where It Fits in the Course

The human rights course contains mainly UK-focused books. Amos's Human Rights Law and Harris, O'Boyle and Warbrick's Law of the European Convention on Human Rights explain the Convention rights and the Human Rights Act through the case law, and Möller supplies a theory for the proportionality reasoning that appears in those cases. Kavanagh's The Collaborative Constitution is a monograph on how rights are protected under the Human Rights Act, which can be compared with Möller's account of judicial review and democracy. Gearty's Civil Liberties, Liberty and Security and On Fantasy Island, and Wacks's Privacy: A Very Short Introduction, deal with particular topics: the history of civil liberties, the balance between liberty and security, the Human Rights Act debate and privacy.

Read it after a textbook on a rights instrument, so that the vocabulary of proportionality is already familiar, and use it as the theoretical companion when the course turns to the structure of rights adjudication.

How to Use This Book

The book is best suited to advanced undergraduates and postgraduates in law and political philosophy. Familiarity with a major rights instrument, such as the European Convention or the Human Rights Act, and some prior exposure to philosophical argument are needed.

A practical plan:

• Core: Chapter 1 for the overview, then the chapters on the right to autonomy, balancing and proportionality, which carry the book's main claims.
• Alongside cases: read the proportionality chapter next to a leading judgment from your own jurisdiction and test Möller's stages against the reasoning.
• Optional: the chapters on negative and positive freedom and on the two conceptions of autonomy can be skimmed by readers who know the philosophical background.
• Afterwards: read a critical account of proportionality to test the argument.