{"title":"Formal Principles: Some Replies to Critics","authors":"R. Alexy","doi":"10.1093/ICON/MOU051","DOIUrl":"https://doi.org/10.1093/ICON/MOU051","url":null,"abstract":"One of the main theses of principles theory is that the rational application of constitutional rights presupposes proportionality analysis and that proportionality analysis necessarily includes balancing. The objection of over-constitutionalization has been raised to this thesis. Principles theory has attempted to reply to this objection with a theory of discretion in which formal principles, in particular, the principle of democracy, play a pivotal role. The theory of formal principles, however, has led in recent decades to more questions than answers. With respect to constitutional rights, two models have been and remain in competition: the combination model and the separation model. The first model balances formal principles in combination with substantive principles, whereas the second model separates the balancing of formal principles from the balancing of substantive principles. It is argued in this chapter that both models are mistaken, and an epistemic model is proposed that finds expression in the epistemic variables of the Weight Formula.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116071477","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Balancing, Constitutional Review, and Representation","authors":"R. Alexy","doi":"10.1093/ICON/MOI040","DOIUrl":"https://doi.org/10.1093/ICON/MOI040","url":null,"abstract":"Balancing is one of the main issues in current debates on the interpretation of constitutional rights. Numerous authors have raised the objection that balancing is both irrational and subjective. It is argued that this objection is unjustified. To show this, balancing is embedded in a theory of discursive constitutionalism that connects the concept of balancing with the concepts of constitutional rights, discourse, constitutional review, and representation. The main theses are these: first, balancing is based on a rational form of argument that can be made explicit by means of the Weight Formula, and second, constitutional review comports with the requirements of democratic legitimation to the extent that it succeeds in becoming an argumentative representation of the people.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2005-10-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134519838","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Nature of Legal Philosophy","authors":"R. Alexy","doi":"10.1111/J.1467-9337.2004.00261.X","DOIUrl":"https://doi.org/10.1111/J.1467-9337.2004.00261.X","url":null,"abstract":"Philosophy is general and systematic reflection about what there is, what ought to be done or is good, and how knowledge about both is possible. Legal philosophy raises these questions with respect to the law. In so doing, legal philosophy is engaged in reasoning about the nature of law. The arguments addressed to the question of the nature of law revolve around three problems. The first problem addresses the question: in what kinds of entities does the law consist, and how are these entities connected such that they form the overarching entity we call ‘law’? The answer is that law consists of norms as meaning contents which form a normative system. The second problem addresses the question of how norms as meaning contents are connected with the real world. The third problem addresses the correctness or legitimacy of law, and, by this, the relationship between law and morality.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"29 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2004-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127255122","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Problems of Discourse Theory","authors":"R. Alexy","doi":"10.22201/IIFS.18704905E.1988.656","DOIUrl":"https://doi.org/10.22201/IIFS.18704905E.1988.656","url":null,"abstract":"There are three groups of problems in discourse theory. The first group concerns the status of discourse theory as a theory of truth. The second group enquires into the practical applicability of discourse theory. The third group takes up the justification of discourse theory. The first two problems, namely the status and the applicability problems, are discussed in this chapter. The result is that the distinction between ideal discourse and real discourse provides an answer to the main questions. For the ideal discourse the idea of absolute procedural correctness is constitutive. The real procedural correctness plays its most important role as far as real discourses are concerned.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1988-12-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130874541","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Gustav Radbruch’s Concept of Law","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0008","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0008","url":null,"abstract":"In the twentieth century, two legal philosophers in the German-speaking countries excelled over all the others and their philosophies remain topics of lively debate in the global discussion today: Hans Kelsen and Gustav Radbruch. Kelsen was a positivist. The classification of Radbruch is contested. According to the discontinuity thesis, Radbruch was a positivist before 1933 and became a non-positivist after 1945. According to the continuity thesis, Radbruch always was a non-positivist. I defend the continuity thesis in this chapter. The basis of the argument presented here is the distinction between super-inclusive and inclusive non-positivism.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122242533","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"The Existence of Human Rights","authors":"R. Alexy","doi":"10.1093/oso/9780198796831.003.0011","DOIUrl":"https://doi.org/10.1093/oso/9780198796831.003.0011","url":null,"abstract":"Human rights are first, universal, second, fundamental, third, abstract, and fourth, moral rights that, fifth, take priority over all other norms. For the question of the existence of human rights, the fourth defining element, the moral character of human rights, is of special significance. The purely moral character distinguishes human rights from constitutional rights. Constitutional rights are positive law at the level of the constitution. This, however, is not to say that no connection exists between human rights and constitutional rights. On the contrary, constitutional rights have to be defined as rights that have been recorded in a constitution with the intention of transforming human rights into positive law. In this respect, constitutional rights have, along with their real dimension, an ideal dimension, that is, they have a dual nature. This implies that the problem of the existence of human rights is essential for constitutional rights, too. Now, human rights exist if they are justifiable. Eight justifications of human rights are considered: the religious, the biological, the intuitive, the consensual, the instrumental, the cultural, the explicative, and the existential. The result of this analysis is an explicative-existential justification, which, while not a perfect justification, is a good justification.","PeriodicalId":142448,"journal":{"name":"Law's Ideal Dimension","volume":"6 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114589238","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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