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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