Product Description

In any country where there is a Bill of Rights, constitutional rights reasoning is an important part of the legal process. As more and more countries adopt Human Rights legislation and accede to international human rights agreements, and as the European Union introduces its own Bill of Rights, judges struggle to implement these rights consistently and sometimes the reasoning behind them is lost. Examining the practice in other jurisdictions can be a valuable guide. Robert Alexy's classic work, available now for the first time in English reconstructs the reasoning behind the jurisprudence of the German Basic Law and in doing so provides a theory of general application to all jurisdictions where judges wrestle with rights adjudication. In considering the features of constitutional rights reasoning, the author moves from the doctrine of proportionality, procedural rights and the structure and scope of constitutional rights, to general rights of liberty and equality and the problem of horizontal effect. A new postscript written for the English edition considers critiques of the Theory since it first appeared in 1985, focusing in particular on the discretion left to legislatures and in an extended introduction the translator argues that the theory may be used to clarify the nature of legal reasoning in the context of rights under the British Constitution. This book will be of central interest to all legal and constitutional theorists and human rights scholars.

Product Details

• Amazon Sales Rank: #924179 in Books
• Published on: 2002-08-01
• Original language: English
• Binding: Hardcover
• 700 pages

Review
This work provides one of the most penetrating, analytically refined, and influential general accounts of constitutional rights available. American realists will recognize the structure of rights it proposes as functional and pragmatic. Comparative constitutional jurists will recognize it as a reconstruction of what is, perhaps, the dominant understanding of constitutional rights in the world. It would be a mistake for constitutional scholars of any tradition not to engage this book seriously. Mattias Kumm Juian Rivers deserves credit not only for a text which does full justice to Alexy's renowned lucidity, but also for an introduction which argues persuasively for the relevance of Alexy's understanding of constitutional rights. Legal Studies ... a valuable contribution to our appreciation of the wider context in which both the German Federal Constitutional Court (FCC) and US Supreme Court operate. European Public Law ... provide(s) us with a stimulating theoretical account of the method of adjudication employed by the judges of the FCC, as well as some insight into the workings and background assumptions of German constitutional law. European Public Law ... reveal(s) numerous and fruitful points of contact between American and German constitutional law on the one hand, and the emerging case-law under the HRA on the other. European Public Law ... challenge(s) us to question some assumptions about UK public law and the role of the judge within it. European Public Law ... provides a series of challenging arguments that draw together fine theoretical developments with a clear analysis of the German case law. Undoubtedly, it constitutes a building block of every serious discussion on constitutional rights and everyone who is interested in these issues should compare his views with Alexy's. His subtle analytical distinctions would shed much light over utterly obscure issues such as horizontality, proportionality, scope, and limits of rights. Moreover, a British audience puzzled by the role of a new Bill of Rights would find much relief from a comparative insight on questions of rights. The strength of this book is that it provides a sound framework for initiating a discussion on constitutional rights. International and Comparative Law Quarterly ... provides an excellent analytical framework to deal with the most difficult constitutional rights issues. International and Comparative Law Quarterly

Review
`Review from previous edition 'This is unquestionably a major classic of German constitutional theory'' Neil MacCormick

`'His theory is now becoming the leading theory of constitutional rights'' Nils Jansen

About the Author
Robert Alexy is Professor of Public Law and Legal Philosophy at the Christian Albrechts University, Kiel, Germany. Between 1994 and 1998 he was President of the German Section of the International Association for Philosophy of Law and Social Philosophy. He is known and admired worldwide as a leading philosopher. Julian Rivers was appointed Lecturer in Law at the University of Bristol after studying at the University of Cambridge and the University of Gottingen. This is his first book.

Customer Reviews

a basic book about fundamental rights' theory
Robert Alexy is professor at Kiel University and this is perhaps his most important book. It's actually one of the basic books written in the world-wide legal theory about the fundamental rights. But it's not a book only for legal philosophers, but it's a fundamental book for the lawyer, the judge or the jurists concerned about Constitutional Law.

The book has ten chapters. In the first one, Alexy studies the concept of a general legal theory about the fundamental rights of the Basic Law (1949), and he does distinguish between the theory and the theories of fundamental rights and he defines his theory as a structural theory. In the second chapter, the author talks about the concept of rule and fundamental right's rule and then, in the third chapter, analyze the structure of these rules and here he builds a particular theory about the rules and principles (starting from Dworkin). The chapter 4 is about the fundamental rights as subjective rights and he proposes a complex system of fundamental legal positions (rights to something, liberties and competences; and the fundamental right as a whole). Alexy examines in the chapter 5 the status' theory (Jellinek) and then he gives the chapter 6 over to the study on the fundamental right and its restrictions and he refers to the narrow (Müller and others) and extensive theories about the supposition of fact of the fundamental rights and he defends vigorously the extensive theory with a specially convincing explanation. In the chapter 7, he examines the general right to liberty, its formal/material conception and its basic problems; the general right to equality is studied in chapter 8; the chapter 9 deals with the fundamental rights to positive action from the state (benefits lato sensu) and its types. The chapter 10 is on the fundamental rights and the fundamental rights' rules in the legal system, and Alexy analyzes the "inter privatos" effect, the effect against private individuals (Drittwirkung der Grundrechte) and the fundamental rights' argumentation.

Some of the more basic aspects of this fundamental work of the nowadays legal theory and of the constitutional law's dogmatic are the particular distinction between rules and principles, the wide conception of the fundamental rights' supposition of fact and it can be said without hyperbole that today it's not possible to argue about all these themes without considering this book of Prof. Alexy in which the author "reconstructs the reasoning behind the jurisprudence of the German Basic Law and in doing so provides a theory of general application to all jurisdictions where judges wrestle with rights adjudication" (Oxford University Press). The book is translated to spanish (a very good translation in Centro de Estudios Constitucionales, 1993) as well. If you can read german, the best is reading this original version, but if not, you can read this very good english translation.