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Concept and Function of Principles. A Critique of Robert Alexy

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

András Jakab

University of Salzburg

Date Written: August 28, 2009

Abstract

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

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

Andras Jakab (Contact Author)

University of Salzburg ( email )

Kapitelgasse 5-7.
Salzburg, 5020
Austria

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