Ernits, Madis --- "A response to Estonian critics of principles theory" [2019] ELECD 1809; in La Torre, Massimo; Niglia, Leone; Susi, Mart (eds), "The Quest for Rights" (Edward Elgar Publishing, 2019) 88

Book Title: The Quest for Rights

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

Publisher: Edward Elgar Publishing

Section: Chapter 6

Section Title: A response to Estonian critics of principles theory

Author(s): Ernits, Madis

Number of pages: 21

Abstract/Description:

The chapter discusses six main arguments presented by Estonian critics against continued application of the principles theory by the Estonian Supreme Court, and especially against balancing. According to the critics, the constitution exists only as a plain framework and not as a foundation, and viewing the constitution as a system of values leads to over-constitutionalisation. Furthermore, the distinction between rules and principles is inadequate, application of the principles theory leads to a disentanglement from the constitution, and the principle of proportionality leads to suspension of the constitution. Moreover, the principle of proportionality is a purely formal guideline, therefore the demand to balance competing principles equals the demand to simply decide. Finally, as there is no universal ‘theory of blue items’, there can be no universal theory of fundamental rights. The purpose of this chapter is to reply to the critics, to link the arguments to the international debate and to defend the principles theory.