Autonomy and Intent: Comment on The Global Model of Constitutional Rights
Jerusalem Review of Legal Studies, 2015 (Forthcoming)
17 Pages Posted: 6 Dec 2014
Date Written: November 30, 2014
Kai Moller's book, The Global Model of Constitutional Rights (Oxford University Press, 2012) is an important contribution to the burgeoning literature on the constitutional model that has developed in Europe after WWII and has spread since across the globe – the global model. The impressive growth of the global model in recent decades in terms of volume, sophistication, influence, and geographic spread, as well as its fascinating rivalry with the other central constitutional model – the American one - make it clearly the most important topic for constitutionalists today. And yet, writers are still grappling with the understanding of this model, both descriptively and normatively, and are far from having definitive answers to the questions it raises. Moller's new contribution on the topic has many virtues. It is exceptionally clear and well organized; it is written with a confident hand and does not shy away from making clear choices; it shows an impressive mastery of the literature in the field, and has a refreshing mix of legal and philosophical approaches. Above all it represents one of the few existing attempts at an overall and comprehensive account of the global model, and has something new and provocative to say about it.
One of the most prominent features of the global model is the radical expansion of the scope of rights; almost anything counts as a right. Moller's book makes a non-conventional move: instead of trying to diminish this problematic trait or qualify it, it acknowledges it at its most extreme interpretation and nevertheless defends it. At the heart of the book are therefore the following provocative claims: there is no limit to the scope of rights; there is no difference between rights and interests, and there should not be any. This contention is based on the second central thesis of the book – its particular theory of autonomy as the central concept of constitutional rights.
In this comment I canvas briefly the main arguments in the book, and then move on to a critique on two methodological points and one substantive point. My main argument would be that Moller's account is correct only if we adopt a model that he actually rejects – the exclusionary reasons model of rights.
Keywords: Constitutional Law, Jurisprudence, Global Constitutional Law, Rights, Proportionality, Exclusionary Reasons
JEL Classification: K10
Suggested Citation: Suggested Citation