Mart Susi's internet balancing formula Alexy, Robert
European law journal : review of European law in context,
March 2019, Letnik:
25, Številka:
2
Journal Article
Recenzirano
Mart Susi has proposed a mathematical formula that claims to make possible balancing in the digital dimension performed by private online companies: the Internet Balancing Formula (IBF). This ...balancing concerns conflicts between the freedom of expression of users of online portals and the personality rights of those who are affected by what is published about them in the online portal. In terms of classical conceptions of constitutional or human rights, this is a case of the horizontal effect of these rights. But the classical or offline horizontal effect concerns a triangle with two private subjects at the bottom and the state at the top. The non-classical or online conception of this horizontal effect places a third private subject at the top of the horizontal effect triangle, the private online company. It becomes a completely private triangle. It is highly contested whether such completely private triangles are compatible with the principles of a democratic constitutional state at all, and, if they are, at which point the state has to be reintroduced in one way or another. But this question of the constitutional distribution of competences or powers shall not be our concern here. Rather, our concern is the Internet Balancing Formula as such.
Aharon Barak and I agree on many questions of proportionality analysis. But there are also points of disagreement. One point concerns the relation between constitutional rights and proportionality. ...Barak argues that my connection between constitutional rights and proportionality is too narrow. The connection I defend implies that proportionality has effects at the constitutional level. In contrast to this, Barak defends the thesis that proportionality only operates at the sub-constitutional level. In this article, I attempt to show that proportionality, already at the constitutional level, must have effects. Naturally, these constitutional effects have, in turn, effects at the sub-constitutional level.
One of the main theses of principles theory is that the rational application of constitutional rights presupposes proportionality analysis, and that proportionality analysis necessarily includes ...balancing. To this thesis, the objection of overconstitutionalization has been raised. Principles theory has attempted to reply to this objection with a theory of discretion in which formal principles, in particular, the principle of democracy, play a pivotal role. The theory of formal principles, however, has led, in the last decades, to more questions than answers. With respect to constitutional rights, two models have been and remain in competition: the combination model and the separation model. The first model balances formal principles in combination with substantive principles, whereas the second model separates the balancing of formal principles from the balancing of substantive principles. In the article it is argued that both models are mistaken, and an epistemic model is proposed that finds its expression in the epistemic variables of the weight formula.
Ratti has attacked principles theory in two respects. The first is that it is impossible to distinguish between rules and principles. The second is that the main thesis of principles theory, which ...says that balancing is the specific way of applying principles, is wrong. The result of Ratti's critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it, an antinomy. All of this is based on two arguments: Ratti's disapplication argument and his law of concretization. I attempt to reject this analysis, for it is incomplete. It claims to be an analysis of balancing, but it misses the decisive point of balancing. Informed by this background, I defend the distinction between rules and principles as a distinction of the real and the ideal “ought.”
The principle of proportionality is necessary if it can claim validity in all legal systems. What can claim validity in all legal systems has absolute validity. On the other hand, what can only claim ...to have validity in some legal systems has merely relative validity. This distinction is applicable not only to the principle of proportionality as a norm about the application of constitutional rights, but also to the constitutional rights themselves, and to the institutionalization of the protection of constitutional rights by means of constitutional review. This leads to three questions, which are systematically closely connected: (1) Do constitutional rights have an absolute character? (2) Does the principle of proportionality have an absolute character? (3) Does constitutional review have an absolute character? Only the first two questions shall be discussed here.
A Non-positivistic Concept of Constitutional Rights Alexy, Robert
International journal for the semiotics of law = Revue internationale de sémiotique juridique,
03/2020, Letnik:
33, Številka:
1
Journal Article
Recenzirano
There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are ...part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights understood as positive rights and human rights understood as moral rights, and, with this, to the dual nature of constitutional rights.
These are the answers I gave to Brian Bix, Peter Koller, Ralf Posher, Torben Spaak, Timothy Endicott, and Jan Sieckmann at the end of a splendid conference day in 2018. The critique given to me ...concerned important aspects of three main themes in my work: the claim to correctness, human and constitutional rights, and the ideal dimension of law. In the last decades I have attempted to connect these themes systematically. The result is the idea of democratic constitutionalism as an institutionalization of practical reason.
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