The structure of rights analysis: proportionality, rules and international law
Every student of comparative constitutional law will compare the ways in which specific rights are protected (or not) in national constitutions. It is unlikely that any generalization about rights-protection will withstand scrutiny. Rights-protection appears to be an area in which national histories and experiences shape constitutional law. The United States is almost unique in guaranteeing an individual right to possess weapons, for example. How can we think about that fact? One possibility is to generate the right from a general account of the prerequisites of constitutionalism itself; a citizenry with the physical capacity to stand up to domestic tyrants. Yet, the near uniqueness of the US provision suggests that such a general account will be insufficient, for why have few other national constitutions perceived the same need for such a right to serve the same purpose? Rather, a better explanation almost certainly lies in central aspects of US culture – the experience, actual at one point, imagined today, of moving to a dangerous frontier, for example (Tushnet 2007).
It might be worth a moment to generate similar examples where variations in rights-protection are probably best attributed to national histories and experiences. Constitutional doctrine in the United States is hostile to regulation of hate speech, whereas such regulation is elsewhere widely thought to be consistent with constitutional guarantees of free expression. The difference probably lies in experiences outside the United States in which hate speech or its analogues appears to have played a significant role in producing gross and relatively...
You are not authenticated to view the full text of this chapter or article.
Elgaronline requires a subscription or purchase to access the full text of books or journals. Please login through your library system or with your personal username and password on the homepage.
Non-subscribers can freely search the site, view abstracts/ extracts and download selected front matter and introductory chapters for personal use.
Your library may not have purchased all subject areas. If you are authenticated and think you should have access to this title, please contact your librarian.