n Acta Juridica - Rights trumped? Balancing in constitutional adjudication

Volume 2004, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



Many modern constitutional charters of fundamental rights authorize the limitation of the rights they entrench. The very abstract terms in which constitutional rights are usually formulated make collisions among them, and between different individuals' entitlements under a single right, inevitable. Naturally, this requires determination of the limits of rival rights and of the entitlements they grant to individuals. It also seems to render legislative and administrative determination of these rights unobjectionable, provided that this is, as these constitutions require, policed by independent courts - there are typically many different ways in which clashing rights and interests might be reconciled in particular circumstances, and it seems appropriate that in democracies the choice of means should be left to an elected legislature and the government over which it exercises ultimate control, while the courts ensure that the choices so made remain within the broad framework of the charter of rights.

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