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Constitutional Rights and Legal System

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Chapter Summary

There are two main constructions of constitutional rights: one is the rule construction, and the other is the principle construction. The line set out in the Lüth decision has met with strong criticism. The critique moves between two poles or strands. The first strand starts with the thesis that balancing is no rational method, because it boils down, in the end to "subjective and decisionistic evaluations". Habermas connects this critique with the objection that balancing deprives constitutional rights of their normative force. The discretion in balancing is not the only reason for a discretion on the part of the legislator, but it is the most important one systematically. From the beginning it stands in the way of a construction of constitutional rights as principles that would lead to a complete substantial determination of the whole legal system by the constitution.

Keywords:constitutional rights; discretion; legal system

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