Kai Moller

Email: K.Moller@lse.ac.uk
Administrative support: Karen Williams
Room: New Academic Building 7.01
Tel. 020-7955-7915

Kai Möller is an Associate Professor of Law at the LSE. Before joining the Law Department in 2009, he was a Junior Research Fellow and previously a Lecturer in Jurisprudence at Lincoln College, University of Oxford. He holds M.Jur., M.Phil. and D.Phil. degrees from Oxford and a PhD in law from Freiburg University. He is also qualified for the German bar.

 

Research Interests
  • Constitutional theory

  • Human rights law and theory

  • Comparative human and constitutional rights law

  • Moral, political, and legal philosophy

 
Books  

Liora Lazarus, Christopher McCrudden, and Nigel Bowles (eds.), Reasoning Rights: Comparative Judicial Engagement (Hart 2014)

This book is about comparative reasoning in human rights cases. The aim is to explore the question: how is it that notionally universal norms are reasoned by courts in such dramatically different ways? What is the shape of this reasoning; which techniques are common across the transnational jurisprudence; and which are diverse?
    The book's second part, edited by Kai, is about proportionality. It fills an important gap in the literature on proportionality by focussing on the proportionality test, as opposed to the pros and cons of proportionality in the abstract. While proportionality is used by almost all courts deciding human or constitutional rights issues, there is no agreement on, and indeed not even a conversation about, the proper construction of the test. Bilchitz's, von Bernstorff's, and Yowell's contributions are the beginning of this important global conversation.

The Global Model of Constitutional Rights (Oxford University Press, 2012)

Since the end of the Second World War and the subsequent success of constitutional judicial review, one particular model of constitutional rights has had remarkable success, first in Europe and now globally. This global model of constitutional rights is characterized by an extremely broad approach to the scope of rights (sometimes referred to as 'rights inflation'), the acceptance of horizontal effect of rights, positive obligations and increasingly also socio-economic rights, and the use of the doctrines of balancing and proportionality to determine the permissible limitations of rights.
    Drawing on analyses of a broad range of cases from the UK, the European Court of Human Rights, Germany, Canada, the US, and South Africa, this book provides the first substantive moral, reconstructive theory of the global model. It shows that it is based on a coherent conception of constitutional rights which connects to attractive accounts of judicial review, democracy and the separation of powers.
   The first part of the book develops a theory of the scope of rights under the global model. It defends the idea of a general right to personal autonomy: a right to everything which, according to the agent's self-conception, is in his or her interest. The function of this right is to acknowledge that every act by a public authority which places a burden on a person's autonomy requires justification. The second part of the book proposes a theory of the structure of this justification which offers original and useful accounts of the important doctrines of balancing and proportionality.

Review article:
Dimitrios Kyritsis, 'Whatever Works: Proportionality as a Constitutional Doctrine', Oxford Journal of Legal Studies (2014) 1-21

Reviews:
Pritam Baruah, 76 (6) (2013) Modern Law Review 1162-1169
John Adenitire, 14 (2014) Human Rights Law Review 159-171
 

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

The book analyses whether and to what extent legal paternalism – protecting a person against his or her will, for example through prohibitions of smoking or drinking, seat-belt laws, or the prevention of suicide – is compatible with human rights, in particular with the rights of the German Basic Law. It is the first in its field to draw on the rich Anglo-American literature on the topic and combine it with German constitutional law doctrines.
   

 

 

 

 
Selected articles
and chapters in books
 

'"Balancing as reasoning' and the problems of legally unaided adjudication: A rejoinder to Francisco Urbina' International Journal of Constitutional Law (2014) 12 (1) pp.222-225; Russian translation in № 4 (101) 2014 Sravitelnoe Konstitutsionnoe Obozrenie (Comparative Constitutional Review) 114-117.

Francisco Urbina argues in his reply to my article "Proportionality: Challenging the Critics" (below) that my conceptions of proportionality and balancing are deficient. In particular, he takes issue with my claim that the doctrine of balancing requires the judge to resolve a conflict of interests in line with sound moral principles (as opposed to consequentialist or mechanical ways of quantification and comparison). Urbina argues that while this is the only defensible account of balancing, it is still unattractive because it fails to provide judges with moral guidance. In this rejoinder, I show that the moral guidance that Urbina is attracted to can only be had at the cost of justice.

'Constructing the Proportionality Test: An Emerging Global Conversation' in Liora Lazarus, Christopher McCrudden, and Nigel Bowles (eds.), Reasoning Rights: Comparative Judicial Engagement (Hart 2014), 31-40

The essay argues that Part 2 of Reasoning Rights, which is about proportionality in rights adjudication, fills an important gap in the literature on proportionality by focussing on the proportionality test, as opposed to the pros and cons of proportionality in the abstract. While proportionality is used by almost all courts deciding human or constitutional rights issues, there is no agreement on, and indeed not even a conversation about, the proper construction of the test. Bilchitz's, von Bernstorff's, and Yowell's contributions are the beginning of this important global conversation.

'From Constitutional to Human Rights: On the Moral Structure of International Human Rights', 3 (2014) Global Constitutionalism 373-403

The paper presents a theory of the moral structure of international human rights. It proceeds by drawing on recent scholarship on the philosophy of national constitutional rights, which has shown that there is now an emerging global consensus on certain structural features of constitutional rights; in previous work I have summarised this under the label 'the global model of constitutional rights'. Starting from the theory of rights underlying the global model, the paper asks what modifications, if any, are required to turn that theory into a suitable theory of international human rights. In particular, it examines the widely held view that international human rights are more minimalist than national constitutional rights. Discussing recent work by Ronald Dworkin (on political/constitutional versus human rights) and Joseph Raz (on legitimate authority versus national sovereignty), the paper concludes that it is not possible to make rights more minimalist than they already are under the global model. It follows that the moral structures of national constitutional rights and international human rights are identical. The final section of the paper examines some implications of this result, addressing the issues of the workability of the proposed conception of international human rights in practice, its point and purpose, and discussing the obligations of states to participate in international mechanisms for the protection of human rights.

'Proportionality and Rights Inflation', in Huscroft, Miller, and Webber (eds.), Proportionality and the Rule of Law: Rights, Justification, Reasoning (CUP 2014);  also available in the Law Society and Economy Working Paper Series WPS 17-2013

Proportionality is the most important principle of constitutional rights law around the world, but our theoretical grasp of both the principle itself and the conception of rights of which it is the crucial part is still emerging. The goal of this chapter is to contribute to the scholarly discussion on proportionality by exposing and exploring an important link between proportionality and rights inflation, ie the phenomenon that increasingly relatively trivial interests are protected as rights. My claim is that proportionality is not only compatible with rights inflation, but that it necessitates it: under a theory of rights which endorses proportionality, there is no coherent way to avoid the conclusion that all (autonomy) interests should be protected as rights, and this includes interests in engaging in trivial and even immoral activities. While this intuitively implausible result may strengthen some in their doubts about or rejection of proportionality, this chapter will proceed by showing that, while my argument, if correct, necessitates the revision of some widely held views about the nature and justification of human and constitutional rights, there is nothing incoherent or unattractive about such a view. On the contrary, rights inflation and proportionality are part and parcel of an attractive conception of constitutional rights.

'The Global Model of Constitutional Rights: Introduction' LSE Law, Society and Economy Working Paper Series (WPS 4/2013)

This introductory chapter of my new book The Global Model of Constitutional Rights (OUP 2012) gives an overview of the project of the book and identifies the existence of the global model of constitutional rights. It then explains the terminology – in particular the use of the terms 'constitutional' and 'global' –, the reconstructive methodology, and addresses the question of whether the US tradition of constitutional rights law forms part of the global model. It concludes by providing a summary of the book's main claims.

'Proportionality: Challenging the Critics' , (2012) 10 (3) International Journal of Constitutional Law 709-731; Russian translation in № 4 (101) 2014 Sravitelnoe Konstitutsionnoe Obozrenie (Comparative Constitutional Review) 86-106

While the principle of proportionality has been the most important doctrinal tool in constitutional rights law around the world for decades, constitutional theorists have only recently begun to develop theoretical accounts of it. Even more recently, a few scholars have come forward with critiques of the doctrine's usefulness, in particular with regard to its assumed failure to adequately address the moral issues and the assumed impossibility or impressionistic nature of balancing. This paper examines the arguments of the critics and concludes that they have failed to make a convincing case against proportionality.

The Right to Life Between Absolute and Proportional Protection, in Bronitt, Gani and Hufnagel (eds.), Shooting to Kill (Hart, 2012), 47-63; also available in the LSE Law, Society and Economy Working Paper Series, WPS 13-2010, February 2010

One of the puzzles of human and constitutional rights law is whether there are any rights which are absolute. The question is important not only for practical purposes but also for the theory of human and constitutional rights: an absolute right presents a departure from what is now the 'default' in constitutional and human rights law around the world, namely the proportionality approach according to which an interference with a right is justified if it serves a legitimate goal and is proportionate to that goal. This paper tries to shed some light on the issue by focussing on the right to life. It proceeds by first presenting an account of the leading case in this area, namely the judgment of the German Federal Constitutional Court in the Aviation Security Act case, where the Court held that shooting down an airplane which was likely to be used as a terrorist weapon was a violation of the right to life in conjunction with the human dignity of the innocent passengers aboard. It then offers a few thoughts on the Court's reasoning, specifically with regard to what it has to say about the idea of absolute rights. Having concluded that the judgment offers little help in illuminating this problem, it presents some approaches to absolute rights from moral philosophy and applies them to human and constitutional rights law. The conclusion is that the right to life will under certain circumstances be absolute or near-absolute, but that these circumstances occur less frequently than is sometimes assumed.

'Two Conceptions of Positive Liberty: Towards an Autonomy-Based Theory of Constitutional Rights' Oxford Journal of Legal Studies [2009] 29 (4) 757-786

In the jurisprudence of constitutional courts around the world, there is an emerging trend towards an autonomy-based understanding of constitutional rights: increasingly, rights are interpreted as being about enabling people to live autonomous lives, rather than disabling the state in certain ways. This essay investigates the conception of autonomy employed by courts by presenting two candidates and examining which of them explains better the current practice of constitutional rights law. The first, labelled the excluded reasons conception of autonomy, claims that a person's autonomy is violated if he is treated on the basis of certain impermissible – in particular moralistic or paternalistic – reasons. It is concluded that while this is a coherent understanding of autonomy, it cannot explain many of the rights which are widely accepted today. The second, the protected interests conception, argues that a person has autonomy interests in controlling certain domains of her life, and offers a scale on which the importance of the various autonomy interests can be assessed. The essay demonstrates that this conception is coherent and adequately explains the current practice. The final section briefly explores some implications of this result for a comprehensive reconstructive theory of constitutional rights.

'Balancing and the Structure of Constitutional Rights' International Journal of Constitutional Law 5 [2007] 453; also Spanish translation: 'Ponderación y estructura de los derechos constitucionales', in Gustavo A. Beade and Laura Clérico (eds.), Desafíos a la ponderación, Universidad Externado de Colombia (2011), 79-113

There are important differences between reasoning with constitutional rights and reasoning with moral fundamental rights. One of them is that constitutional courts around the world employ a balancing or proportionality test in order to determine the limits of rights, whereas many philosophers reject such an approach. In his book 'A Theory of Constitutional Rights', Robert Alexy develops a comprehensive conception of constitutional rights, his central thesis being that they are optimization requirements and, as such, necessarily open to balancing. The essay reviews the success of Alexy's claim and concludes that he ultimately fails to demonstrate that balancing holds a rightful place in constitutional rights reasoning.

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

One of the laws passed in Germany as a response to the terrorist attacks of September 11, 2001 is the Aviation Security Act (Luftsicherheitsgesetz). Its most controversial part was the section that gave the Minister of Defence permission to order the shooting down of a hijacked passenger plane in a 9/11 scenario. In 2005, the German Federal Constitutional Court ruled that this part of the Aviation Security Act violated the right to life in conjunction with the human dignity of the innocent passengers aboard the plane, and declared it void.

'Abwägungsverbote im Verfassungsrecht' (Prohibitions of Balancing in Constitutional Law) 46 (2007) Der Staat 109-128

'Verfassungsgerichtlicher Grundrechtsschutz gegen Gemeinschaftsrecht' (Constitutional Protection against European Community Law) Jura [2006] 91

'Der Ehebegriff des Grundgesetzes und die gleichgeschlechtliche Ehe' (The Concept of 'Marriage' under the Basic Law, and Same-Sex Marriage) Die Öffentliche Verwaltung [2005] 64

'Selbstmordverhinderung im freiheitlichen Staat' (The Prevention of Suicide, and the Liberal State) Kritische Vierteljahresschrift [2005] 230