"Norms for decision" and "the Methodological Claim to Fairness" in the works of Eugene Ehrlich and Robert Alexi

Abstract

The article under studies deals with the issue of openness of interpretation. It emphasizes that the pathos of E. Ehrlich’s activity on the whole and the leading idea of his norms for decision, in particular, revolve around the concept of what might be called the methodological claim to fairness. As a result, norms for decision precisely convey Ehrlich’s vision of how this claim can be satisfied. For the modern Ukrainian legal reality, both the notion of the claim to fairness and the concept of norms for decision are relatively open issues.In order to achieve this goal, it is essential to answer two questions: first, what is the essence of methodological claim to fairness, and second, in which way do norms for decision perform the function of a means of satisfying this claim. The answer to these questions lies in the fact that the abstract methodological claim to fairness is the advocated by E. Ehrlich demand for recognition of free law-making, which consists in the rejection of the omnipresence of interpretation. The hypostatized subject of such a claim is the juridical method, its addressees are judges and / or professors, whereas its means are norms for decision. In a generalized form, the methodological claim to fairness is primarily a demand for openness of interpretation in the event of gaps or errors in law and / or laws. Norms for decision are primarily a way of filling gaps in the course of free law-making praeter legem, as well as a means of correcting errors in the case of free law-making extra, including contra legem. In other words, it is the matter of eliminating the shortcomings of law and / or laws.Filling in gaps and correcting errors take the form of weighing interests (E. Ehrlich) and principles (R. Alexy) and aim at forming a potentially universal legal rule that may involve the subsumption of the circumstances of the case. To put it differently, it is focused on creating norms for decision. Although norms for decision are of a casual origin, they go beyond the case in which they arise. The latter results from the requirement of equal treatment, which means that under the same conditions, subjects of law should be treated equally.