A theory of Fundamental Rights con el prof. Martin Borowski  (Universität Heidelberg) 

The course will have the following structure:

First Lecture: 2 Feb 2017

The Concept of Fundamental Rights, their Doctrinal Structure (Protected Area, Interference and Justification), Proportionality and the Weight Formula

First Part: ‘Fundamental Rights as Transformed Moral Rights and the Reconstruction of Horizontal Effect’

In this first part of the lecture, the concept of fundamental rights will be explained. Fundamental rights are rights that objectively claim to transform human rights as moral rights into the law. The differences between and similarities of human rights and fundamental rights will be explored. An interesting test case are the market freedoms of the European Union – are they „fundamental rights“? If so, in what sense, if not, why not? In answering these and other questions, the idea of fundamental rights as transformed human rights and the distinction between classifying and qualifying criteria for fundamental rights will be key. Finally, the transformation of human rights erga omnes into fundamental rights against the state or other public authority raises the question of horizontal effect or Drittwirkung of fundamental rights, the reconstruction of which will be discussed.

Bibliographic material:

1. On the concept of human rights:

[PDF] Martin Borowski, ‘Discourse Theory in International Law – Human Rights through Discourse’, in German Yearbook of International Law 44 (2001), pp. 38-71, at pp. 42-46

2. On the concept of fundamental rights and the idea of classifying and qualifying criteria for fundamental rights:

[PDF] Martin Borowski, Classifying and Qualifying Properties of Fundamental Rights, in Human Rights and Ethics, A. Ollero (ed) (Stuttgart: Steiner, 2007), pp. 37-45

Second Part: ‘The Doctrinal Structure of Fundamental Rights (Protected Area, Interference and Justification), Proportionality and the Weight Formula’

In the second part, the doctrinal structure of fundamental will be explained. Claims stemming from fundamental rights are typically assessed in the structure of limited area, interference, and justification. Why so? Why not simply perform subsumption under criteria develeped by means of interpretation of the wording of provisions granting fundamental rights? Among the criteria for justification formal and substantive criteria can be distinguished, the key substantive criterion is proportionality with balancing at its core. Similarities of and differences between subsumption and balancing will be explained as well as the distinction between internal and external justification and between the process of discovery and the process of justification. Against this backdrop, the issue of whether proportionality is rational can be analysed. Finally, Robert Alexy’s attempt to capture the internal justification in the Weight Formula will be presented and critically analysed.

Bibliographic material:

1. On the doctrinal structure of fundamental rights:

[PDF] Martin Borowski, ‘Absolute Rights and Proportionality’, in German Yearbook of International Law 56 (2013), pp. 385-423, at pp. 388-392

 2. On subsumption, balancing, and the weight formula:

[PDF] Robert Alexy, ‘On Balancing and Subsumption. A Structural Comparison’, in Ratio Juris 16 (2003), pp. 433-449

3. In greater detail on the weight formula:

[PDF] Robert Alexy, ‘The Weight Formula’, trans B. Brozek and S. L. Paulson, in Frontiers of Economic Analysis of Law – Studies in the Philosophy of Law, J. Stelmach, B. Brozek, and W. Zaluski (eds), vol. 3 (Cracow 2007), pp. 9-25

Second Lecture (3 Feb 2017)

Absolute Rights and Balancing, Positive Rights and Proportionality, and Formal Principles

First Part: ‘Absolute Rights and Balancing & Formal Principles’

In the first part of the second lecture, the problem of ‘absolute rights’ in a system of relative rights will be analysed. There is a huge controversy over the idea of proportionality applied to human dignity or the prohibition of torture, which is why prevailing opinion rejects the very idea of balancing here. The prevailing opinion gives rise, however, to some paradoxes. The question arises as to whether an analysis based on the weight formula might help to develop a convincing reconstruction. The second topic is the idea of formal principles, which are crucial for the reconstruction of epistemic discretion in balancing – a key element of employing proportionality analysis in a liberal democracy. These two topics are, according to Alexy, connected in the weight formula by means of the variable ‘R’ – a claim that needs criticl analysis.

Bibliographic material:

1. On proportionality analysis of absolute rights:

[PDF] Martin Borowski, ‘Absolute Rights and Proportionality’, in German Yearbook of International Law 56 (2013), pp. 385-423

2. On the reconstruction of formal principles:

[PDF] Robert Alexy, ‘Formal Principles: Some Replies to Critics’, in International Journal of Constitutional Law 12 (2014), pp. 511-524.

Second Part: ‘Proportionality and Positive Rights’

In the second lecture, the structure of positive rights is key. There is much uncertainty how to assess claims stemming from positive rights. In particular, there is uncertainty and confusion how to apply proportionality to positive rights. Based primarily on an analysis of rights to protection, this issue will be explained. There is a particular form of discretion for positive rights, means-selecting discretion, which needs to be considered along with other forms of structural discretion and epistemic discretion. The coaction of these different forms of discretion explains why definitive positive rights are a rare phenomenon.

Bibliographic material:

[PDF] Robert Alexy, ‘On Constitutional Rights to Protection’, in Legisprudence 3 (2009), pp. 1-17.

EXAMEN / EXAM

Examen conjunto con la asignatura “Legal Argumentation & Constitutional Theory” (prof. Klatt) / Joint Exam with the “Legal Argumentation & Constitutional Theory” (prof. Klatt) course.