ON THE NATURE OF LEGAL PRINCIPLES (ARSP BEIHEFT No. 119), pp. 145-159, Martin Borowski, ed., Stuttgart: Steiner, 2009
14 Pages Posted: 29 Aug 2011 Last revised: 12 Nov 2011
Date Written: August 28, 2009
In recent decades, various theories have postulated that principles have a structure distinct from that of rules (or norms). This contribution introduces and critically analyzes these theories (esp. the one of Robert Alexy) in order to develop a new approach to the concept and function of principles. Its main thesis is that “principles” should not be conceived as structurally different from “rules”; a “principle” means simply a “very important rule”, so the differentiation is of rhetorical nature. This result does not deny, however, the existence of special functions bound to “principles”. It simply wants to get rid of a superfluous common place on the distinct logical structure of principles. It is superfluous because the phenomena explained by it can also be otherwise (i.e. by the traditional rule paradigm) explained. Its introduction, thus, only superfluously, unnecessarily complicates the explanation.
Keywords: principles, Robert Alexy, rules, norms, legal theory
JEL Classification: K10
Suggested Citation: Suggested Citation
Jakab, András, Concept and Function of Principles. A Critique of Robert Alexy (August 28, 2009). ON THE NATURE OF LEGAL PRINCIPLES (ARSP BEIHEFT No. 119), pp. 145-159, Martin Borowski, ed., Stuttgart: Steiner, 2009. Available at SSRN: https://ssrn.com/abstract=1918421 or http://dx.doi.org/10.2139/ssrn.1918421