Law & Ethics of Human Rights

Volume 4, Issue 1 2010 Article 2

RIGHTS, BALANCING & PROPORTIONALITY

The Construction of Constitutional Rights

Robert Alexy∗

∗Christian Albrechts University Kiel, lsalexy@law.uni-kiel.de

Copyright c�2010 The Berkeley Electronic Press. All rights reserved.

The Construction of Constitutional Rights∗

Robert Alexy

Abstract

This article calls for the construction of constitutional rights as principles, rather than as rules.The rule construction conceives subsumption or classification as the appropriate form for the ap-plication of constitutional rights. It attempts, in this way, to avoid the problems associated withbalancing. By contrast, the principles construction argues that balancing is inevitable and unavoid-able. Balancing is at the very core of the proportionality test. The debate over the constructionof constitutional rights is, therefore, first and foremost a debate over proportionality analysis. Thecentral objection to the principles construction is that balancing and, with it, the proportionalitytest, is irrational. This irrationality objection is countered by analysis of the formal structure ofbalancing; the analysis shows that balancing is a case of rational legal argument that is expli-cated by means of an arithmetic formula: the Weight Formula. The Weight Formula provides ademonstration of how and why balancing is possible as a form of rational legal argument. It alsomakes it possible to show that proportionality analysis endangers neither the power nor the forceof constitutional rights.

KEYWORDS: Weight Formula, constitutional rights, rational legal argument, principles, rules,balancing, proportionality test

∗Professor of Public Law and Legal Philosophy at the Christian Albrechts University Kiel. I wouldlike to thank Stanley L. Paulson for suggestions and advice on matters of English style.