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3 Legisprudence 1 (2009)

handle is hein.journals/legisp3 and id is 1 raw text is: ON CONSTITUTIONAL RIGHTS TO PROTECTION Robert Alexy* Abstract The main problem of constitutional rights to protection stems from the fact that to protect the one side is to interfere with the other. This dialectic of protection and interference gives rise to the notion that there can always be only a single correct constitutional solution where both rights - the protective right and the defensive right - have to be optimized according to the rules of proportionality. This, however, would leave no room for the autonomy of parliamentary legislation in all those matters that concern conflicts between defensive and protective rights, conflicts that are everyday fare in every legal system. Overconstitutionalization would then appear to be unavoidable. It is argued that this impression is mistaken. To apply the principle of proportionality at the same time to defensive and to protective rights does not undermine legislative discretion to such a degree that the reproach of overconstitutionalization would be justified. The logical basis of the argument developed here is found in the alternative or disjunctive structure of protective rights in contrast to the conjunctive structure of defensive rights. Keywords Constitutional rights, right to positive state action, protective rights, overconstitutionalization, proportionality, alternativity, legislative discretion. A. THE EXPANSION OF CONSTITUTIONAL RIGHTS The history of constitutional rights in Germany in the second half of the twentieth century is a history of expansion. This expansion is characterized by three, closely related aspects. First, constitutional rights have gained influence that goes far beyond the relation between the citizen and the state. They have acquired a radiating effect' over the entire legal system. The result is the ubiquity of * Professor of Public Law and Legal Philosophy at the Christian Albrechts University Kiel. I should like to thank Stanley L Paulson for help and advice on matters of English style. 1 Decisions of the Constitutional Court of the Federal Republic of Germany (BVerfGE) 7, 198, 207.

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