Normative and Institutional Dimensions of Rights' Adjudication Around the World

33 Pages Posted: 4 May 2018

See all articles by Pedro Caro de Sousa

Pedro Caro de Sousa

Organization for Economic Co-Operation and Development (OECD)

Date Written: April 17, 2018

Abstract

The implications of incommensurability for rights’ adjudication tend to be overlooked in much of contemporary constitutional theory. This paper criticizes the dominant “one right-answer” approach to conflicts of rights, and develops an alternative approach that is better suited to constitutional rights’ adjudication in contemporary pluralistic legal orders. It is submitted that the normative reasons for having courts undertake the value-choices implicit in constitutional rights’ adjudication, and for preferring certain legal methodologies over others, must reflect the role of courts in resolving social disputes in the light of specific aspects of the economic, social, and legal life of the polities in which those courts operate. It is further argued that any theory that builds from this approach needs to answer two inter-related questions: when is constitutional rights’ adjudication by courts appropriate, and how rights’ adjudication should be pursued.

Keywords: constitutional law; rights' adjudication; institutional comparisons; comparative constitutional law; incommensurability

JEL Classification: K00; K10; K19; K30; K39; K40

Suggested Citation

Caro de Sousa, Pedro, Normative and Institutional Dimensions of Rights' Adjudication Around the World (April 17, 2018). Available at SSRN: https://ssrn.com/abstract=3164407 or http://dx.doi.org/10.2139/ssrn.3164407

Pedro Caro de Sousa (Contact Author)

Organization for Economic Co-Operation and Development (OECD) ( email )

2 rue Andre Pascal
Paris Cedex 16, 75775
France

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