Do Legal Rights Matter? Comments on The Global Model of Constitutional Rights

In his book The Global Model of Constitutional Rights¹ Möller provides us with a simple and a provocative challenge: why do we need legal or constitutional rights? Rights after all are designed to promote values. When we protect the right to free speech we ultimately wish to promote the values underlying it, e.g., autonomy. Hence one can argue that instead of protecting speech we ought to protect the underlying value, e.g., autonomy. In previous work I named this view “the primacy of values hypothesis.”² In this comment, I first present the hypothesis as understood by Möller. I also raise some concerns with respect to Möller’s views and last I argue against the primacy of values hypothesis. More specifically I argue that establishing and entrenching rights is necessary for the realization of the values underlying these rights, in particular autonomy.

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We all believe that the right to free expression...