Limiting Clauses: On the Continental European Tradition of Special Limiting Clauses and the General Limiting Clause of Art 52(1) Charter of Fundamental Richts of the European Union
Abstract In the Continental European tradition, provisions granting fundamental rights frequently include a written limiting clause such as art 11(2) ECHR: “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society ….” Instead of the traditional system of special limiting clauses, in which provisions granting rights include their own limiting clauses, one finds in the Charter of Fundamental Rights of the European Union in art 52(1) a general limiting clause. The introduction of this provision is a welcome basis for analysing the nature of limiting clauses in general and the respects in which general limiting clauses differ from systems of written and unwritten special limiting clauses in particular. The formal requirement of limitation by law and the substantive requirement of proportionality prove to be the essential limiting criteria.
A Charter of Rights with Wide Scope
In this chapter, I address a dispute concerning the structure of fundamental rights. Every legal community has to answer the central question of which approach to rights (and which of their variant forms) provides the best understanding of the constitution. The two main rival approaches reflect the dominant legal practice in the U.S. and in Germany. In attempt to grasp the features of fundamental rights as they appeared in the case law of the German Federal Constitutional Court (BVerfG), Alexy formulated a theory of rights with wide scope, that is, prima facie, externally limited, and relative rights. A rival approach was suggested by Dworkin, who directed his analysis to the case law of the U.S. Supreme Court and asserted that constitutional rights were rather specific, unrestricted, and possibly absolute. This chapter shall demonstrate that the Supreme Federal Court of Brazil (STF) has interpreted the Federal Constitution as a charter of wide-scope rights, in accordance with Alexy’s principles theory. The court has done so despite the constitutional silence regarding the possibility of legislative limits to the fundamental rights. To demonstrate this, Section 5.1 begins by discussing the interpretative questions posed by fundamental rights and their limits, and how different scholars have approached the problem. Section 5.2 expounds the differences between Alexy’s principles theory and Dworkin’s trump model. Section 5.3 analyses fifteen decisions delivered by the STF on freedom and equality rights. Finally, Sect. 5.4 highlights the principles-theory influence on the STF’s case law, advancing justificatory reasons for the borrowings.
Das Gesetz über das Bundesverfassungsgericht
Bei der Gesetzgebungsarbeit, die der Gegenstand der letzten Untersuchung sein soll, handelt es sich um eine sehr wichtige Materie: die wenigen Vorschriften des Grundgesetzes uber das Bundesverfassungsgericht musten erganzt, erweitert, mit Inhalt angefullt werden. Alle die Entscheidungen, denen die verfassunggebende Versammlung behutsam ausgewichen war, galt es jetzt zu fallen.