Constitutional Rights as Moral Judgments

The idea of constitutional rights presupposes a theory of rights with moral

priority, which legal positivism is incapable of explaining, as Robert Alexy

has shown. But what does explain this priority? In this chapter, I wish to

discuss the character and force of constitutional rights. I will do so with the

help of Robert Alexy’s fertile argument about the moral dimensions of law, but

with an important caveat. I will challenge his argument that law has a ‘dual’

nature. I will propose that law has a single nature, namely the nature of a moral

judgment, so that all legal propositions are moral in nature.

Pavlos Eleftheriadis, 'Constitutional Rights as Moral Judgments' in La Torre, Niglia, Susi (eds.), The Quest for Rights: Ideal and Normative Dimensions (Elgar, 2019) 64-87.