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Ways of Solving Conflicts of Constitutional Rights: Proportionalism and Specificationism

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  • A preliminary version of this paper was presented in the Ratio Juris Seminar 2010 Law and Morality. The Perspective of Robert Alexy, on 12 November 2010 at the University of Bologna Law School. I am deeply indebted to the organizers of the seminar, the other speakers (Mattias Kumm, George Pavaklos, and Dennis Patterson) and, especially, Robert Alexy for his illuminating comments.

Abstract

This paper deals with the question of the conflict of constitutional rights with regard to basic rights. Two extreme accounts are outlined: the subsumptive approach and the particularistic approach, that embody two main conceptions of practical rationality. Between the two approaches there is room for a range of options, two of which are examined: the proportionalist approach, which conserves the scope of rights restricting their stringency, and the specificationist approach, which preserves the stringency of rights restricting their scope. I will present arguments in defence of the latter.

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