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Where Our Protection LiesSeparation of Powers and Constitutional Review$
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Dimitrios Kyritsis

Print publication date: 2017

Print ISBN-13: 9780199672257

Published to Oxford Scholarship Online: September 2017

DOI: 10.1093/oso/9780199672257.001.0001

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PRINTED FROM OXFORD SCHOLARSHIP ONLINE (oxford.universitypressscholarship.com). (c) Copyright Oxford University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in OSO for personal use. date: 17 June 2021

Moral and Constitutional Rights

Moral and Constitutional Rights

(p.181) 8 Moral and Constitutional Rights
Where Our Protection Lies

Dimitrios Kyritsis

Oxford University Press

Some theorists oppose deference not because it is haphazard but because it is incompatible with respect for fundamental rights. They argue that compromising human rights is a price a legitimate state should never have to pay, and constitutional review is there to ensure that this does not happen. Against this line of argument the chapter argues that there is nothing in the logic of constitutional rights that precludes deference. To this effect, it defends a distinction between moral and constitutional rights. Drawing on TM Scanlon’s controversial theory of rights it maintains that constitutional rights are clusters of principles of political morality, not all of which correspond to deontological constraints about what under no conditions we may do to the right holder. Importantly, some of these principles also reflect the importance of sharing fundamental rights protection amongst state institutions. The chapter then connects this understanding of constitutional rights and political legitimacy.

Keywords:   rights as trumps, deontological constraints, TM Scanlon, moral shortfall, judicial underenforcement

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