Insights, Errors and Self-Misconceptions of the Theory of Principles

30 Pages Posted: 17 Nov 2009

See all articles by Ralf Poscher

Ralf Poscher

Max Planck Institute for the Study of Crime, Security and Law

Abstract

The theory of principles is multifaceted. Its initial expression contained an important argument against positivist theories of adjudication. As a legal theory, it fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption or balancing. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights. Its most promising aspect could be its contribution to a more comprehensive theory of legal argumentation.

Suggested Citation

Poscher, Ralf, Insights, Errors and Self-Misconceptions of the Theory of Principles. Ratio Juris, Vol. 22, Issue 4, pp. 425-454, December 2009, Available at SSRN: https://ssrn.com/abstract=1505729 or http://dx.doi.org/10.1111/j.1467-9337.2009.00434.x

Ralf Poscher (Contact Author)

Max Planck Institute for the Study of Crime, Security and Law ( email )

Guenterstalstr. 73
Freiburg, 79100
Germany

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