The Absolute and the Relative Dimension of Constitutional Rights

Abstract

The principle of proportionality is necessary if it can claim validity in all legal systems. What can claim validity in all legal systems has absolute validity. On the other hand, what can only claim to have validity in some legal systems has merely relative validity. This distinction is applicable not only to the principle of proportionality as a norm about the application of constitutional rights but also to the constitutional rights themselves, and the institutionalization of the protection of constitutional rights by means of judicial review. This leads to three questions, which are connected systematically: (1) Do constitutional rights have an absolute character? (2) Does the principle of proportionality have an absolute character? (3) Does constitutional review have an absolute character? In this chapter the first two questions are discussed.