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Tschentscher on Balancing & Interpretation of Fundamental Rights

By Lawrence Solum

Axel Tschentscher (Bern University - Law School) has posted Interpreting Fundamental Rights: Freedom vs. Optimization on SSRN. Here is the abstract:

"More Freedom, Less Balancing!" ? that is the battle cry in contemporary human rights law. It sounds throughout public international law and has its reflections in national constitutional law. The German version of this debate circles around the case law of the Federal Constitutional Court (Bundesverfassungsgericht, BVerfG). The court has adopted wide ranging balancing in its interpretation of fundamental rights, thereby encouraging the theory that basic rights for the most part have the structure of principles rather than rules.

Ronald Dworkin has introduced the theory of principles in the United States. In Germany, the theory of principles is most strongly emphasized by Robert Alexy. The German version has a specific flavor. While the anglo-american discussion of principles focuses on judicial activism and mostly glances over the structural analysis of principles, Alexy ties additional characteristics to the concept, namely the duty to optimize the principles' normative impact. Structure, optimization, and balancing are seen as an interrelated functional framework forcing courts ? and that is: all human rights courts, nationally and internationally ? to adopt a balancing approach with fine-grained control as their major tool of adjudication. As a matter of fact, most courts now follow this jurisprudential guideline.

This paper challenges the balancing approach as a danger for individual liberty. It finds that (1) there are good reasons to read much of the fundamental rights' content as rule based rather than principle based, (2) flexibility in a legal system is not dependent on the structure of principles, but also comes with properly drafted rules, and (3) principles can be understood without the notion of optimization in order to reduce the courts' preponderance over legislative power.

Full post as published by Legal Theory Blog on June 28, 2010 (boomark / email).