Equality as Reasonableness: Constitutional Normativity in Demise
THE DARK SIDE OF FNDAMENTAL RIGHTS, A. Sajo, ed., Kluwer, 2006
26 Pages Posted: 14 Dec 2005
The first part of this article is an attempt to make sense - from a constitutional perspective - of concepts such as the "abuse" or "misuse" of constitutional rights. It is argued that while the meaning of "abuse" is very much dependent on specific constitutional provisions, the notion of "misuse" can be given a more general application. It extends to cases where a misinterpretation of a fundamental rights gives rise to a serious alteration of the separation of powers.
The second part of the article offers a case-study of misuse. It affects the equality principle and how it has been transformed by some European courts into an expedient tool for the intuitive assessment of the rationality and reasonableness of legislation. This transformation of the equality principle has serious repercussions for the separation of powers. It invests constitutional courts with virtually unlimited power to invalidate the political choices made by the legislature on the basis of the mere moral intuitions of their members.
Keywords: constitutions, normativity, equality, constitutional rights
JEL Classification: K19, K40
Suggested Citation: Suggested Citation