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Gardbaum, Stephen --- "The Structure and Scope of Constitutional Rights" [2011] ELECD 381; in Ginsburg, Tom; Dixon, Rosalind (eds), "Comparative Constitutional Law" (Edward Elgar Publishing, 2011)

Book Title: Comparative Constitutional Law

Editor(s): Ginsburg, Tom; Dixon, Rosalind

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848445390

Section: Chapter 21

Section Title: The Structure and Scope of Constitutional Rights

Author(s): Gardbaum, Stephen

Number of pages: 19

Extract:

21. The structure and scope of constitutional rights
Stephen Gardbaum*



The title and subject of this chapter is the structure and scope of constitutional rights. Because
this is not (yet) a generally or widely recognized sub-field of comparative constitutional law,
it is quite possible that some readers will find themselves scratching their heads wondering
what exactly these words refer to. Indeed, the very term `the structure of constitutional rights'
might appear to be something of a contradiction for, as the organization and table of contents
of this volume well illustrate, issues of `constitutional structure' (Part III) are generally under-
stood to be distinct and separate from issues of `individual rights' (Part IV). The former cover
such matters of institutional and inter-institutional design as separation of powers, federalism
and judicial review, whereas the latter concern the direct constitutional relationship between
the state and the individual. Even if, in Madisonian vein, we acknowledge that traditional
issues of constitutional structure have important effects on this relationship, such as limiting
the concentration of political power, these effects are indirect and distinct from the impact of
rights.
So let me begin by doing what probably no other contributor to this book will need to do:
explain the chapter title. The structure of constitutional rights may usefully be distinguished
from their substance. The latter concerns the content and parameters of particular rights that
exist in a given constitutional system. By contrast, the structure is the underlying framework
­ set of concepts, principles, doctrines and institutions ­ ...


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