Constitutional Rights through Discourse

259 Pages·2004·1.37 MB·English

Constitutional Rights
through Discourse
On Robert Alexy’s Legal Theory -
European and Theoretical Perspectives
Agustín J. Menéndez and
Erik O. Eriksen (eds)
ARENA Report No 9/2004
Fundamental Rights through Discourse

Agustín J. Menéndez and Erik O. Eriksen (eds)

Copyright © ARENA
and the authors
ISSN 0807-3139

ARENA
Centre for European Studies
University of Oslo
P.O.Box 1143, Blindern
N-0317 Oslo, Norway
Tel: + 47 22 85 76 77
Fax: + 47 22 85 78 32
E-mail: [email protected]
http://www.arena.uio.no

Oslo, October 2004

Table of contents

Introduction
Agustín José Menéndez …………………………………………….. 1

Part I
A Theory of Constitutional Rights Revisited

Chapter 1
Discourse Theory and Fundamental Rights
Robert Alexy …………………………………………………..….. 35

Part II
Theoretical Perspectives

Chapter 2
Disciplining the Instrumentalism of Policies
Kaarlo Tuori ……..………………………………………………… 55

Chapter 3
Nine Critiques to Alexy’s Theory of Fundamental Rights
Massimo La Torre ………………………………………………..... 77

Chapter 4
Democratic or Jurist-Made Law? On the Claim to Correctness
Erik O. Eriksen ………………………………………………….… 95

Chapter 5
On Alexy’s Weight Formula
Carlos Bernal Pulido……………………………..…………………. 129
Part III
Applied Perspectives

Chapter 6
Constitutional Rights in the UK Human Rights Act
Julian Rivers …………………………………………………….… 143

Chapter 7
Some Elements of a Theory of European Fundamental Rights
Agustín José Menéndez …………………………………………….. 159

Chapter 8
Fundamental Rights as Principles
Mattias Kumm …………………………………………………….. 201

Part IV
Appendix

Appendix
Bibliography of Robert Alexy …………………………………… 237
Introduction
Fundamental Rights through Discourse

Agustín José Menéndez
Ramón y Cajal Researcher, Universidad de León

§1. [Why the publication of A Theory of Constitutional Rights is a major
event] The publication of the English translation1 of Robert Alexy’s Theorie
der Grundrechte is a major event for at least two reasons. First, the book is one
of the major contributions to contemporary legal and constitutional theory.
Together with Theorie der juristischen argumentation2 and Begriff und Geltung des
Rechts3, A Theory of Constitutional Rights, makes Alexy one of the major
modern legal philosophers, on a par with Hans Kelsen, H.L.A. Hart, Ota
Weinberger, Ronald Dworkin, Neil MacCormick and Joseph Raz. Second,
A Theory of Constitutional Rights is one of the most authoritative expositions of
German fundamental rights provisions. The German constitutional tradition
is among the most, if not the most, influential of such traditions. It has exerted
and keeps on exerting a major influence on most other European legal
systems. As such, it is likely to leave its imprint on the interpretation of the
UK Human Rights Act 1998.4 It is also bound to be extremely influential in
the interpretation of European Union fundamental rights norms, as stemming

1 A Theory of Constitutional Rights, Oxford: Oxford University Press, 2002 (hereafter, ATR)
2 A Theory of Legal Argumentation, Oxford: Oxford University Press, 1989 (hereafter, TLA).
3 An Argument from Injustice, Oxford: Oxford University Press, 2002 (hereafter, AFI).
4 The official text of the Act is available at
http://www.hmso.gov.uk/acts/acts1998/19980042.htm. Among the many monographs and
articles, see for a critical analysis Jeffrey Jowell and Jonathan Cooper, Delivering Rights: How the
Human Rights Act is Working and for Whom, Oxford: Hart Publishers, 2003.

In Agustín José Menéndez and Erik Oddvar Eriksen (eds.)
Fundamental Rights through Discourse, ARENA, Oslo, 2004, pp. 1-32
1
2 Agustín José Menéndez

from the constitutional traditions common to the Member States,5 and as
consolidated in the solemnly proclaimed Charter of Fundamental Rights of
the European Union.6 The eventual debate and ratification of a European
Constitution7 renders the constitutional analysis of Union fundamental rights
even more relevant. The exquisite translation into English by Julian Rivers
gives to all of us the further benefit of an English lexicon on the subject
matter.

§2. [The plan of this chapter] In this chapter, I will try to do three things:
(1) situate A Theory of Constitutional Rights within Alexy’s legal theory; (2)
expose the basic contributions of the book to constitutional theory; (3)
summarise the arguments made by each of the contributors to this report.

I. The Main Elements of Alexy’s Legal Theory
§3. [The theoretical sources of Alexy’s legal theory: analytical
philosophy and critical theory] Robert Alexy’s legal theory has two main
theoretical springs. On the one hand, analytical philosophy, in general
philosophical terms8 and as applied to jurisprudential endeavours, especially
by H.L.A. Hart.9 Analytical philosophy is mainly concerned with the

5 Case 29/69, Stauder [1969] ECR 419, paragraph 7: ”Interpreted in this way, the provision
at issue contains nothing capable of prejudicing the fundamental rights enshrined in the general
principles of Community law protected by the Court”; Case 11/70, Internationale, [1970] ECR
1125. A classic analysis of fundamental rights in Union law can be found in Aland Dashwood
and Derrick Wyatt, The Substantive Law of the EEC, London: Sweet and Maxwell, 1987, pp.
66ff; Trevon Clayton Harley, The Foundations of the European Community Law, Oxford: Oxford
University Press, 1994, pp. 139ff; Dominik Lasok and John William Bridge, An Introduction to
the Law and Institutions of the European Communities, London: Buttherworths, 1982, pp. 139ff.
6 On the Charter, see among others, Steve Peers and Angela Ward (ed.), The EU Charter of
Fundamental Rights, Oxford: Hart Publishers, 2004; Tamara Hervey and Jeff Kenner (eds.),
Economic and Social Rights under the EU Charter, Oxford: Hart Publishers, 2003; and Erik O.
Eriksen, John Erik Fossum and Agustín José Menéndez (eds.), The Chartering of Europe, Baden-
Baden: Nomos, 2003.
7 On constitution-making in the Laeken process, see Renaud Dehousse (ed.), Une
Constitution pour l’Europe?, Paris: Presses de Sciences Po, 2002; Dimitris N. Triantafyllou, Le
project constitutionnel de la Convention européenne, Bruxelles: Bruyllant, 2003 and Erik Oddvar
Eriksen, John Erik Fossum and Agustín José Menéndez, Developing a Constitution for Europe,
London: Routledge, 2004.
8 Among the analytical philosophers who have exerted more influence on legal theory,
reference must be made to John L. Austin, and especially to his How to do things with words,
Cambridge: Harvard University Press, 1962) and John R. Searle, Speech Acts, Cambridge:
Cambridge University Press, 1969.
9 See his The Concept of Law, Oxford: Oxford University Press, 1961 (2nd edition with the
post-face published in 1994); Essays on Bentham: Studies in jurisprudence and political theory,
Introduction 3

elucidation and clarification of the categories of ethical discourse. Not
surprisingly, this provides the analytical ground of Alexy’s legal theory. On the
other hand, critical theory and discourse ethics.10 Discourse ethics is based on
the insight that individuals solve conflicts and coordinate action through the
use of language, by means of talking to each other. This implies that discourse,
not violence or propaganda, is the most basic form of human action.11 As
such, it provides the normative ground of his legal theory.12

§4. [The pragmatic assumptions we make when we assert; the domain of
argumentation] A very basic observation that Alexy makes is that human
beings are characterised by their practice of making assertions. This might
seem rather trivial, but if one reflects about it, one realises that asserting,
whatever is asserted, implies raising a claim to the correctness of what is being
asserted. In its turn, the claim to correctness entails a claim to justifiability,
which in itself presupposes that the person or persons with whom we are
discussing is/are capable of putting forward arguments; and therefore, that she
or they is/are capable of entering into practical reasoning: of determining what
is correct in universalisable terms. All this implies that when we assert
something, we cannot but assume the autonomy of the audience, their freedom
(or capacity to decide what is correct and what is wrong) and the basic
equality of ourselves and the audience (what would be the point of discussing
if others could not make arguments as equally well-formed as ours?). This
involves that when we assert, we assume a certain conception of the person as

Oxford: Oxford University Press, 1982; Essays in Jurisprudence and Philosophy, Oxford: Oxford
University Press, 1983. See also Neil D. MacCormick, H L A Hart, London: Edward Arnold,
1981.
10 The main exponent of which is Jürgen Habermas. See his The Theory of Communicative
Action, Boston: Beacon Press, 1984 and 1987; Moral Consciousness and Communicative Action,
Cambridge: The MIT Press, 1990; Justification and Application, Cambridge: The MIT Press,
1993; Between Facts and Norms, Cambridge: The MIT Press, 1996. See also Thomas McCarthy,
The Critical Theory of Jürgen Habermas, Cambridge: The MIT Press, 1978; William Regh, Insight
and Solidarity. The Discourse Ethics of Jürgen Habermas, Berkeley: California University Press,
1996; Erik Oddvar Eriksen and Jarle Weigård, Understanding Habermas, London: Continuum,
2003. See also the special issue of volume 17 of the Cardozo Law Review, devoted to Habermas’
philosophical and legal theory.
11 Robert Alexy, ’Discourse Theory and Human Rights’, 9 (1996) Ratio Juris, pp. 209-35,
especially at p. 217;”Whoever never in his life makes an assertion and puts forward an
argument does not take part in the most general form of life of human beings”; see also Martin
Borowski, ’Discourse Theory in International Law: Human Rights through discourse’, 44
German Yearbook of International Law, pp. 38-71.
12 On the ensuing tensions, see also Massimo La Torre, chapter 3 of this report, Section IX.
4 Agustín José Menéndez

a discoursive or deliberative person, that is, as a person who has an interest in
correctness.13
This subtle and seductive train of reasoning renders explicit the pragmatic
assumptions we make when we enter the discoursive or deliberative space by
means of making an assertion. This exercise has an obvious limit, namely, that
it does not guarantee that we actually follow such assumptions when we act. To
put it differently, the argument in itself is not enough to answer the vexing
question of the motivational force of reasons. The fact that if people enter into
deliberation, they have to assume the basic autonomy and equality of those
who are also within the domain of argumentation does not imply that such
assumptions are binding when they act. Alexy tackles this problem with three
further observations. First, a stable social order cannot be based only on force.
Coercion and force are the most expensive and less effective technologies of
power. This entails that a stable social order has to rely on opinion, on the
belief among the governed that the government is a legitimate, fair one (that
is, on legitimacy in a factual, social sense).14 This does not directly imply that
common action norms will be based on good reasons, but the more modest
premise that there would be a demand for reasons of common action norms.15
Second, factual legitimacy is more easily and permanently established if it
comes hand in hand with critical, normative legitimacy than if it is merely based
on propaganda or mischief. Counter-factual validity is a more reliable source
of social legitimacy in the long run, precisely because it is counter-factual, and
not purely factual.16 Third, if a sizeable part of the population is genuinely
interested in correctness, in doing what is right, those arguing about what should
be done in common (that is, about laws and political decisions) will have to
pretend (if they do not genuinely believe it) that they abide by the principles
of autonomy and equality, or what is basically the same, that they endorse the

13 Alexy, supra, fn 11; see also Erik O. Eriksen, chapter 4 of this report, section IV. See also
George Pavlakos, ‘Persons and Norms: On the Normative Groundwork of Discourse Ethics’,
85 (1999) ARSP 7-22.
14 Alexy, supra, fn 11, p. 219: “Force is expensive, and an order formed by it is unstable and
therefore a risk for the elite. A legitimation is cheaper and in the long run also more secure”
15 This is the basic insight of Hume’s ’Of the First Principles of Government’: “When we
inquire by what means this wonder [the rule of the few over the many] is effected, we shall
find, that, as Force is always on the side of the governed, the governors have nothing to
support them but opinion. It is, therefore, on opinion only that government is founded; and this
maxim extends to the most despotic and the most military governments, as well as the most
free and the most popular”. David Hume, Selected Essays, Oxford: Oxford Classics, 1993, p.
24.
16 Alexy, supra, fn 11, p. 219.
Introduction 5

pragmatic assumptions of discoursive interaction.17 This is done for purely self-
interested reasons, namely, to be successful with their arguments. However,
buying into such pragmatic assumptions might require paying the price of
coherence at later stages, when the arguments previously upheld can be
reversed against the present interests of whoever upheld them before. This is
the basis of the civilising force of hypocrisy.

§5. [Why social integration cannot be trusted to moral discourses;
positive morality and law] Even if discourse practices are genuinely
prevalent in a society, this does not guarantee that people will spontaneously
coordinate their action in order to achieve common goals, or that there will
not be conflicts due to incompatible courses of action.18 Even if citizens are
genuinely willing to act morally, moral discourse has a limited capacity to
ensure social integration, because it is exclusively a system of knowledge, and a
limited one for that purpose.19 Pure moral discourses revolve around
universalisability, which is too indeterminate a criterion to provide
knowledge of what to do in complex situations; moreover, forming a fresh
moral judgment in each and every case is extremely burdening, if not paralysing.
Thus, social integration must be trusted to a system which is not only a
system of knowledge, but which combines moral with ethical and prudential
concerns, and which is also a system of action which, by institutionalising
coercion, offers additional reasons to comply to the addressees of the norms.20
This is so for three main reasons: (1) cognitive, because it is only through the
combination of moral with prudential and ethical arguments that we can
determine what to do in specific cases (as just hinted at); (2) motivational,
because even if we are willing to do what is correct, we cannot always be sure of
our strength of will; (3) coordinative, because effective coordination in order to

17 Ibidem. The key passage is the following: “Tyrants, dictators, and despots have always
known this and have usually attempted legitimations by employing arguments. That those
arguments were regularly bad and mere propaganda is not important here. Decisive is the fact
that they try to use these arguments at all. In this way, the maximization of individual utility
leads into argumentation and consequently into the field of discourse rules, because a sufficient
interest in correctness has to be taken into account”
18 Habermas, supra (1996), fn 10, p. 106: “To be sure, moral and legal questions refer to the
same problems: how interpersponal relationships can be legitimately ordered and actions
coordinated with one another through justified norms, how action conflicts can be
consensually resolved against the background of intersubjectively recognised normative
principles and rules”.
19 For a clarification, see Robert Alexy, ’The Special Case Thesis’, 12 (1999) Ratio Juris, pp.
374-84, at p. 377.
20 TLA, pp. 287ff.