Alexy, Robert --- "A non-positivistic concept of constitutional rights" [2019] ELECD 1805; in La Torre, Massimo; Niglia, Leone; Susi, Mart (eds), "The Quest for Rights" (Edward Elgar Publishing, 2019) 13

Book Title: The Quest for Rights

Editor(s): La Torre, Massimo; Niglia, Leone; Susi, Mart

Publisher: Edward Elgar Publishing

Section: Chapter 2

Section Title: A non-positivistic concept of constitutional rights

Author(s): Alexy, Robert

Number of pages: 14

Abstract/Description:

There are two fundamentally different conceptions of the nature of constitutional rights: a positivistic conception and a non-positivistic conception. According to both, constitutional rights are part of the positive law. The difference is that in the positivistic conception, constitutional rights are only or exclusively positive law, whereas in the non-positivistic conception positivity represents but one side of constitutional rights, that is to say, their real or factual side. Over and above this, constitutional rights, according to the non-positivistic conception, also have an ideal or critical dimension. This is not without reason. For as with all law, constitutional rights necessarily raise, in connection with principles theory, a claim to correctness. This claim to correctness leads to a necessary connection between constitutional rights as positive rights and human rights, as moral rights and, with this, to the dual nature of constitutional rights.