oxford law - the faculty and its members : kai moller

Kai Moller studied law at the Universities of Freiburg (First State Exam 1999; Ph.D. 2003) and Oxford (M.Jur. 2001; M.Phil. 2003). He is also a qualified barrister (Rechtsanwalt) in Germany (Second State Exam, Berlin 2005). In 2005, Kai returned to Oxford on a postdoctoral research fellowship of the Fritz Thyssen Foundation to work on a second doctorate/book, before taking up the post as Junior Research Fellow in Law at Lincoln College in October 2007.

His main area of interest is constitutional rights theory, combining constitutional law doctrines, comparative materials, and elements of moral and political philosophy in order to develop a general, substantive moral theory of constitutional rights. This starts from the observation that in recent decades, constitutions and constitutional courts around the world have employed strikingly similar approaches to constitutional rights law. On the one hand, there is a trend towards an extremely wide protection of (prima facie) constitutional rights – including a right to privacy, horizontal effect of constitutional rights, protective duties, and, increasingly, socio-economic rights. On the other hand, courts employ a balancing or proportionality approach to determine the limits of these rights.The constitutional texts, doctrines, and the case law can be reconstructed as one coherent model of constitutional rights, and this model connects to an attractive philosophical account of constitutional rights and judicial review.

URL: http://ssrn.com/abstract=1279486

K Moller, 'Balancing and the Structure of Constitutional Rights' (2007) International Journal of Constitutional Law 453

K Moller, 'Abwägungsverbote im Verfassungsrecht (Prohibitions of Balancing in Constitutional Law)' (2007) Der Staat 115

K Moller, 'On Treating Persons as Ends: The German Aviation Security Act, Human Dignity, and the Federal Constitutional Court' (2006) Public Law 457

K Moller, Paternalismus und Persönlichkeitsrecht (Paternalism and the Right to Privacy) (Duncker & Humblot 2005)

English Abstract: The book examines whether and to what extent legal paternalism – protecting a person against his will, for example through prohibitions of smoking or drinking, seat-belt laws, or the prevention of suicide – is permissible under the German Basic Law. It is the first in its field to draw on the rich Anglo-American literature on the topic and to combine it with German constitutional law doctrines. The first chapter sets out the conceptual framework, specifies the purpose of the book, and summarizes the existing case law of the German Federal Constitutional Court. The second chapter reconstructs the Court’s jurisprudence on the right to privacy (Persönlichkeitsrecht) as essentially a right to self-determination, and demonstrates that paternalism interferes with this (prima facie) right. The third chapter examines whether the interference can be justified. It reviews doctrines of constitutional, criminal, and private law, as well as philosophical approaches put forward by J.S. Mill, J. Feinberg, R. and G. Dworkin, J. Rawls, J. Kleinig, and others. It argues that in order to both respect the constitutional framework and be philosophically coherent, one must permit paternalism to a limited degree. Subject to proportionality analysis, it is permissible to protect a person against her will if the coercion aims at making her comply with her own set of values, rather than an external set which she rejects for herself. This conclusion is then applied to a number of practically relevant examples. The final chapter asks whether the Basic Law imposes a positive duty on the state to act paternalistically in at least some cases, and concludes that, with the exception of minors and other persons unable to exercise their autonomy, this is not the case.

ISBN: 3428116798