Robert Alexy’s A Theory of Constitutional Rights critical review: key jurisprudential and political questions

Abstract

Abstract The question of the theoretical foundations of fundamental rights and of the coherence in the application of constitutional rights reasoning in different legal systems is one of the foremost issues of all democratic constitutional states where there is a presence of a Bill of Rights, in continental European jurisprudence as well as in other common law jurisdictions. The analysis of how constitutional rights reasoning on fundamental rights is structured in the legal process of constitutional states is in fact deeply linked with the very concept of democracy and of a democratic state: a substantive, structural theory of fundamental rights is essential in every contemporary democratic society, being crucial for both its legal and political structure. Alexy’s substantial general theory of fundamental rights constitutes in this respect a major contribution to the development of constitutional law and legal reasoning, one which goes well beyond the interpretation of the German basic law, providing a theory of general application relevant to most, if not all, European as well as non-continental legal orders.