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Loosely Relational Constitutional Rights

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  • Tom Kohavi

Abstract

This article attends to claims that the expansionist trend in modern constitutional practices resulted in the recognition of many norms that are not real rights: that fail to guide and constrain duty-bearers and empower and protect right-holders because they are too abstract and can be limited too regularly. It claims that many constitutional rights are, indeed, ‘loosely relational’: the correlation between them and duties is flexible and affected by considerations external to the direct relations between the right-holder and the duty-bearer. However, it adds that the assumption that rights must be ‘strictly relational’ for them to exhibit the robust normativity that gives rights their force and value is incorrect. This is important because loosely relational constitutional rights confer this robust normativity on consequentialist standards for the evaluation of legal norms and activities: a fundamental role constitutional rights play in modern liberal legal systems, reflecting a collective commitment to the realisation of social justice.

Suggested Citation

  • Tom Kohavi, 2021. "Loosely Relational Constitutional Rights," Oxford Journal of Legal Studies, Oxford University Press, vol. 41(2), pages 348-375.
    • Handle: RePEc:oup:oxjlsj:v:41:y:2021:i:2:p:348-375.
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    File URL: http://hdl.handle.net/10.1093/ojls/gqaa049
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