On Constitutional Rights to Protection

Abstract

The main problem of constitutional rights to protection stems from the fact that to protect the one side is to interfere with the other. This “dialectic of protection and interference” gives rise to the notion that there can always be only a single correct constitutional solution where both rights – the protective right and the defensive right – have to be optimized according to the rules of proportionality. This, however, would leave no room for the autonomy of parliamentary legislation in all those matters that concern conflicts between defensive and protective rights, conflicts that are everyday fare in every legal system. Overconstitutionalization would then appear to be unavoidable. It is argued that this impression is mistaken. To apply the principle of proportionality at the same time to defensive and to protective rights does not undermine legislative discretion to such a degree that the reproach of overconstitutionalization would be justified. The logical basis of the argument developed here is found in the alternative or disjunctive structure of protective rights in contrast to the conjunctive structure of defensive rights.