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The Global Model of Constitutional Rights$
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Kai Möller

Print publication date: 2012

Print ISBN-13: 9780199664603

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199664603.001.0001

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Towards a Theory of Balancing and Proportionality: The Point and Purpose of Judicial Review

Towards a Theory of Balancing and Proportionality: The Point and Purpose of Judicial Review

Chapter:
(p.99) 5 Towards a Theory of Balancing and Proportionality: The Point and Purpose of Judicial Review
Source:
The Global Model of Constitutional Rights
Author(s):

Kai Möller

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199664603.003.0005

This chapter proposes an account of the point and purpose of judicial review under the global model, which reflects attractive conceptions of the values of democracy (political autonomy) and the separation of powers. It argues that constitutional rights and policy-making are both oriented towards personal autonomy and that, in particular, policies ought never to be concerned with the well-being of the citizens. Relying on a reinterpretation of Mattias Kumm's work, the chapter shows that for a policy to be constitutionally legitimate and democratic properly understood, it must represent a reasonable, as opposed to the one correct, specification of the spheres of autonomy of equal citizens. It further shows that there is no need for a free-standing right to equality or a right to non-discrimination. Finally, the chapter argues that it is plausible to assume that courts will possess the institutional competence of assessing constitutional legitimacy under the reasonableness standard required by the global model; and the implications of this result for a doctrine of deference are explored.

Keywords:   political autonomy, personal autonomy, judicial review, equality, right to equality, democracy, separation of powers, institutional competence, reasonableness, Kumm, well-being, deference

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