Ideal and Normative Dimensions
Edited by Massimo La Torre, Leone Niglia and Mart Susi
Chapter 6: A response to Estonian critics of principles theory
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.
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.