The Global Model of Constitutional Rights

Abstract

This chapter introduces the global model of constitutional rights, a globally successful conception of rights with four characteristic features: first, rights inflation; second, an acknowledgment of horizontal effect; third, an acknowledgment of positive obligations and, increasingly, socio-economic rights; and fourth, the endorsement of the doctrines of balancing and proportionality. It contrasts this understanding of rights with the ‘dominant narrative of the philosophy of fundamental rights’, according to which rights protect only interests of a special importance, apply only vertically, impose only negative obligations, and hold a special normative force over competing considerations. It explains that the gap between the global model and the dominant narrative raises urgent questions regarding the conception of rights which underlies the global model and the legitimacy of judicial enforcement of this particular conception in light of the values of democracy and the separation of powers. The chapter then sets out the project of the book, namely to provide a general, reconstructive, and substantive moral theory of the global model. It clarifies the terms ‘global’ and ‘constitutional’, explains the exclusion of the U.S. practice from the scope of the book, provides an account of the reconstructive methodology, and ends with a summary of the subsequent chapters.

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