The Quest for Rights
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The Quest for Rights

Ideal and Normative Dimensions

Edited by Massimo La Torre, Leone Niglia and Mart Susi

This discerning book explores the concept of human and fundamental rights, originating from the seminal work by the German legal scholar and constitutional lawyer Robert Alexy. Recognising the growing challenges to the idea of the universality of Human Rights, expert scholars consider time-independent conceptual questions which inevitably lie at the heart of any contemporary human rights discourse: What is the justification of balancing and/or trading off fundamental rights against other rights and collective goods? And are there utilitarian considerations that can limit the normative force of human rights?
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Chapter 6: A response to Estonian critics of principles theory

Madis Ernits


The chapter discusses six main arguments presented by Estonian critics against continued application of the principles theory by the Estonian Supreme Court, and especially against balancing. According to the critics, the constitution exists only as a plain framework and not as a foundation, and viewing the constitution as a system of values leads to over-constitutionalisation. Furthermore, the distinction between rules and principles is inadequate, application of the principles theory leads to a disentanglement from the constitution, and the principle of proportionality leads to suspension of the constitution. Moreover, the principle of proportionality is a purely formal guideline, therefore the demand to balance competing principles equals the demand to simply decide. Finally, as there is no universal ‘theory of blue items’, there can be no universal theory of fundamental rights. The purpose of this chapter is to reply to the critics, to link the arguments to the international debate and to defend the principles theory.

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