A Theory of Constitutional Rights.

Author:Ewald, William
Position:Book Review

A THEORY OF CONSTITUTIONAL RIGHTS. By Robert Alexy, (1) trans., Julian Rivers. (2) Oxford University Press. 2002. Pp. 1iii + 462. $110.00.

This welcome work is a scrupulous translation of Robert Alexy's Theorie der Grundrechte, (4) a work which first appeared in 1986 and which has been one of the most influential recent contributions to European thinking about the adjudication of constitutional rights (5) The English version contains a new Postscript responding to the various criticisms the work has attracted in the past two decades. The theme of the book is the individual rights jurisprudence of the German Constitutional Court. Of the major European legal systems, Germany, with its "higher-law" Constitution, an expansive list of individual constitutional rights, and a special court explicitly charged with their enforcement, has been at the forefront of the development of a European human rights jurisprudence. The European Convention on Human Rights, and such national statutes as the British Human Rights Act 1998, have begun to spread constitutional rights adjudication throughout the rest of Europe. The work of the German Constitutional Court has provided one of the chief intellectual models, especially for the new constitutions of Eastern Europe. For over fifty years it has been generating constitutional opinions, often of exceptional quality, and has in the process developed the richest body of constitutional case law outside of the United States; but it is a body of case law with close affinities to continental European styles of adjudication.

It is tempting (and also, with reservations, correct) to describe the spread of human rights constitutionalism as an expansion of the "American model" of judicial review. Certainly the post-war German Constitution was influenced heavily in its conception of judicial review (via Austria) by the American example; and the Constitutional Court has paid careful attention over the years to the work of the United States Supreme Court. But it is worthwhile to recall that the most vigorous period of American human rights adjudication did not begin in earnest until several years after the adoption of the German Basic Law, a document that already reads like a charter for the activism of the Warren Court. In important respects the constitutional developments in the two countries have run in parallel, in the same direction but independently of one another. But more importantly, as the bibliography and the discussions in this book make clear, the intellectual roots of European constitutional rights discourse have roots that go back centuries into the western legal tradition. The debates are rich and complex, the theoretical constructs highly sophisticated; so that what one sees in the wave of new human rights courts is not a simple transplanting of American law, but a highly creative borrowing and re-thinking, from many sources, of fundamental concepts that lie at the heart of the western legal tradition, and of which American law is but one outcropping. All of this means that there is an exceptional interest for American constitutional scholars in following the developments in Europe: even when they converge on the same result, the process of reasoning is often different enough to be theoretically illuminating.

Alexy's work provides a window onto an important corner of these intellectual developments. It deals with, and criticizes, a wide range of theories in German constitutional scholarship; if one reads it with care, one can get an introduction to at least some of the modern debates. But an immediate warning is in order. This is an important book, but it is by no means an easy book, and the reader must be prepared to work and to think in order to get at its meat. There are three reasons for this. First, the book was originally written as a Habilitation thesis--that is, as the thesis for the second German doctoral degree (in effect, the necessary credential for a tenured professorship). Habilitation theses, especially in law, tend to be long, heavily footnoted, and, above all, comprehensive--designed rather to demonstrate complete mastery of some doctrinal subject-area than originality. Alexy is by disposition and training an analytical legal philosopher, and his work, especially in the core theoretical chapters, is far more original than one typically...

To continue reading