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A Theory of Constitutional Rights and the British Constitution Julian Rivers 1. Human Rights and Constitutional Rights 2. Convention Rights as Subjective Rights and Objective Law 3. The Theory of Principles and Rules 4. Horizontal, or Third Party, Effect [Drittwirkung] 5. The General Right to Liberty 6. The General Right to Equality 7. Constitutional Entitlements 8. Conclusion: The Constitutionalization of the Legal System A Note on this Translation Introduction 1. The Content and Purpose of a Theory of Constitutional Rights I. The Concept of a General Legal Theory of the Constitutional Rights of the Basic Law 1. A Theory of the Constitutional Rights of the Basic Law 2. A Legal Theory of the Constitutional Rights of the Basic Law 3. A General Legal Theory of the Constitutional Rights of the Basic Law II. Constitutional Rights Theory and Constitutional Rights Theories III. Constitutional Rights Theory as Structural Theory 2. The Concept of a Constitutional Rights Norm I. On the Concept of a Norm 1. On the Controversy about the Concept of a Norm 2. The Semantic Concept of a Norm 3. The Separation of Semantic Questions from Questions of Validity 4. The Connection of Semantic Questions with Questions of Validity 5. The Assertion and Creation of Norms II. The Constitutional Rights Norm 1. Constitutional Rights Norms and Constitutional Rights Provisions 2. Derivative Constitutional Rights Norms 3. On Friedrich Miiller's Theory of Constitutional Rights Norms 3. The Structure of Constitutional Rights Norms I. Rules and Principles 1. Traditional Criteria for Distinguishing Rules from Principles 2. Principles as Optimization Requirements 3. Competing Principles and the Conflict of Rules 4. The Different Prima Facie Character of Rules and Principles 5. Rules and Principles as Reasons 6. Generality and Principles 7. Three Objections to Principles 8. Principles and Proportionality II. Three Models 1. The Model of Pure Principles 2. The Model of Pure Rules 3. The Model of Rules and Principles III. Theories of Principles and Values 1. Principles and Values 2. Objections to Theories of Principles and Values 4. Constitutional Rights as Subjective Rights I. On the Current Debate about Subjective Rights 1. Subjective Rights and Normative Questions 2. Subjective Rights and Empirical Questions 3. Subjective Rights and Analytical Questions II. A System of Basic Legal Positions 1. Rights to Something 2. Liberties 3. Powers III. The Complete Constitutional Right 5. Constitutional Rights and Legal Status I. Jellinek's Theory of Legal Status 1. The Passive Status 2. The Negative Status 3. The Positive Status 4. The Active Status II. On the Critique of Jellinek's Status Theory 6. The Limits of Constitutional Rights I. The Concept and Types of Constitutional Rights Limit 1. The Logical Possibility of Limits 2. The Concept of a Constitutional Rights Limit 3. Types of Limit 4. On the Guarantee of an Inalienable Core as a Limit to Limits II. The Scope and Limits of Constitutional Rights 1. The Protected Area and Scope of Rights 2. Narrow and Wide Theories of Scope III. Limitation and Outworking 7. The General Right to Liberty I. The Concept of a General Right to Liberty II. A Formal-Material Conception of the General Right to Liberty 1. The No-Content Objection 2. The Combination of Formal and Material Principles III. Spheres of Protection and Implied Liberties 1. Sphere Theory 2. Implied Liberties IV. Problems with the General Right to Liberty 1. The General Right to Liberty and Selected Guarantees 2. The General Right to Liberty and the System of Constitutional Rights 3. The General Right to Liberty and the 'Isolated Individual' 4. The General Right to Liberty and Other Constitutional Norms 8. The General Right to Equality I. Equality in the Application and Creation of Law II. The Structure of the Requirement of Equality in the Creation of Law III. The Formulae of the Federal Constitutional Court IV. Similar and Differential Treatment 1. The Requirement of Similar Treatment 2. The Requirement of Differential Treatment V. The Principle of Equality and Evaluation VI. Legal and Factual Equality 1. The Concepts of Legal and Factual Equality 2. The Principles of Legal and Factual Equality 3. On the Role of the Principle of Factual Equality VII. The Structure of Equality Rights as Subjective Rights 9. Rights to Positive State Action (Entitlements in the Wide Sense) I. Basic Terms and Concepts 1. Constitutional Text and Legislative History 2. The Case-Law of the Federal Constitutional Court 3. The Nature of the Dispute about Entitlements 4. The Concept and Division of Entitlements 5. The Guiding Idea II. Protective Rights 1. On the Concept of Protective Rights 2. The Existence of Protective Rights 3. Structure and Justiciability of Protective Rights III. Rights to Organization and Procedure 1. On the Current State of Debate 2. The Concept of a Right to Organization and Procedure 3. On the Problem of their Existence 4. Procedural Rights and Status Theory 5. Types of Right to Organization and Procedure IV. Entitlements in the Narrow Sense (Social Constitutional Rights) 1. Concept and Structure 2. On the Arguments For and Against Social Constitutional Rights 3. A Model of Social Constitutional Rights 10. Constitutional Rights and Constitutional Rights Norms in the Legal System I. The Fundamental Nature of Constitutional Rights Norms II. Third Party, or Horizontal, Effect 1. On the 'Radiation' Thesis 2. The Construction Of Horizontal Effect III. The Legal System and Constitutional Rights Reasoning 1. Constitutional Rights and the Nature of the Legal System 2. On the Problem of the Controlling Competence of the Constitutional Court 3. Argumentation and Decision Postscript I. Too Little and Too Much II. Framework and Foundation 1. The Concept of a Framework 2. The Concept of a Foundation II. Structural Discretion and Balancing 1. End-Setting Discretion 2. Means-Selecting Discretion 3. Discretion in Balancing IV. Formal Principles 1. Epistemic Discretion as the Outcome of Balancing 2. Epistemic Discretion and the Binding Nature of the Constitution Appendix: The Constitutional Rights Provisions of the German Basic Law Bibliography Index |