Formal Principles: Some Replies to Critics

2021 ◽  
pp. 175-189
Author(s):  
Robert Alexy

One of the main theses of principles theory is that the rational application of constitutional rights presupposes proportionality analysis and that proportionality analysis necessarily includes balancing. The objection of over-constitutionalization has been raised to this thesis. Principles theory has attempted to reply to this objection with a theory of discretion in which formal principles, in particular, the principle of democracy, play a pivotal role. The theory of formal principles, however, has led in recent decades to more questions than answers. With respect to constitutional rights, two models have been and remain in competition: the combination model and the separation model. The first model balances formal principles in combination with substantive principles, whereas the second model separates the balancing of formal principles from the balancing of substantive principles. It is argued in this chapter that both models are mistaken, and an epistemic model is proposed that finds expression in the epistemic variables of the Weight Formula.

2021 ◽  
pp. 220-234
Author(s):  
Robert Alexy

This chapter presents the argument that the rational application of constitutional rights necessarily presupposes proportionality analysis as defined by principles theory and that proportionality analysis can be rational only if it is embedded in a theory of legal argumentation. The basic elements of principles theory are the Law of Balancing, explicated by the Weight Formula, and the Law of Competing Principles. Both concern the formal rationality of balancing. The connection of this formal dimension of rationality with the theory of legal argumentation connects the formal with a substantive dimension. The result of this connection is a system that is compatible with the requirements of universalizability and legal certainty.


Author(s):  
Dimitrios Kyritsis

In order to preserve the courts’ subsidiarity, even when they monitor the legislature, we must develop a suitable concept of judicial deference. This is the aim of this chapter. It distinguishes two modes of deference, the epistemic and the robust. On the epistemic model, deference affects the deliberative process of judges but does not change the standard by which we evaluate legislative decisions. On the robust model, deference does not affect judicial deliberation but changes what is the right thing to do; it may require giving effect to the authority’s decision, although it is sub-optimal as far as its content is concerned on the strength of countervailing considerations of institutional design. These two modes of deference can also be combined (composite deference). Deference, thus understood, is not erratic and ad hoc but sensitive to reasons of political morality and amenable to rational application.


2000 ◽  
Author(s):  
Jean Maria Arrigo ◽  
Maj-Britt Juhl Poulsen

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