Resuscitation of a Phantom? On Robert Alexy’s Latest Attempt to Save His Concept of Principle
Posted: 18 Mar 2020 Last revised: 26 Mar 2020
Date Written: March 9, 2020
This paper is my contribution to round three of a long-standing debate between Robert Alexy and me about the principles theory’s concept of principle. In the first round, Alexy – bucking tradition – proposed a non-gradualist distinction between rules and principles that divided the ontology of norms into two categorically distinct norm-types. He connected this norm-theoretical analysis with a theory of fundamental rights according to which such rights had to be understood as principles and thus interpreted as optimization requirements. In my habilitation some 15 years ago, I objected to the norm-theoretical assumptions and questioned the doctrinal merit of the principles theory approach. Unlike Alexy, I saw no merit in his notion of principle over and above optimization requirements, which by that time Alexy, too, regarded as rules. In round two, Alexy defended his concept of principle by taking refuge in the notion of an ideal ought, which he defined as a command to be optimized. In this second round, I criticized the new attempt to save his view of principles on the ground that the norms Alexy had in mind did not optimize commands but states of affairs and thus were ordinary norms or rules according to the misguided taxonomy of the principles theory. Alexy opened round three of our exchange by admitting that my critique of round two was justified and that he had erred in identifying principles as ideal commands to be optimized. He now proposes an index theory of principles. In the paper, I recapitulate the motive and the main points of our debate and scrutinize Alexy’s latest innovation. The goal of my critique is not so much to deconstruct an idiosyncratic norm-theoretical ontology but rather to break the spell that this misguided but in some parts of the world very influential theoretical position exerts on the interpretation of fundamental rights as optimization requirements.
Keywords: Robert Alexy, Ronald Dworkin, legal rules, legal principles, fundamental rights, principles theory, legal theory, constitutional law, balancing, subsumption, optimization
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