Interní kritika ústavních práv

Abel, Martin

Constitutional Rights: An Internal Critique Martin Abel Abstract Proportionality test is a core instrument of human rights law. In one of its steps, governments must convince the courts that limiting the right pursued a legitimate aim. The right-holders, however, are saved the effort. Without obvious reasons why, the courts take legitimacy of individual action for granted. Due to this asymmetry, even malicious or hateful conduct enjoys at least prima facie protection, as long as it is subsumable under one of the listed rights. The thesis explains the proportionality test asymmetry by its relation to one particular conception of rights, called the I-conception. Under the I-conception, rights are abstract principles that ought to be realised to the highest degree. It is based on the philosophy of Thomas Hobbes or Immanuel Kant who insisted that all limits of natural rights must be the product of will. The thesis presents an alternative conception of rights, one that anchors rights in critical morality, making them subject to limits from natural law, too. It argues that such was the conception of rights among famous Christian-Aristotelian philosophers and that even John Locke properly understood is the heir of this tradition. The thesis sources heavily from the works of intellectual historians in order to show...

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