The Principle Theory: How Many Theories and What is Their Merit?

The work of Robert Alexy is closely associated with the “principle theory”. For Alexy himself, the principle theory represents the heart of his theoretical work, around which most of his publications are organized. In Alexy’s work, and in the work of his students, the label “principle theory” suggests theoretical unity. Despite this impression of unity, the principle theory is far more multilayered and multifaceted than the “unitary” label would suggest. The critique of Alexy’s principle theory, which is the topic of this article, has two objectives. First, I distinguish between the different types of theory which have found refuge under the unitary label. By clarifying the different theoretical aspirations pursued by proponents of the principle theory, I systematize these different theoretical and doctrinal efforts which are often not clearly separated in the debate. The critique aims to offer a framework within which to situate the different arguments and criticisms, so that it becomes clearer which type, level or aspect of principle theory the argument is about. This is the constructive part of the critique. Second, the critique aims to evaluate the theoretical and doctrinal positions and achievements of the various principle theories on each of the levels identified. This analysis is for the most part critical. The claim is that the principle theory is wrong on most counts and misunderstands itself by confusing the different levels of its theoretical and doctrinal aspirations. At its origins, as put forward by Josef Esser and Ronald Dworkin in the framework of a theory about the concept of law, it has its merit in rejecting the simplifications of positivist theories of adjudication. A defense of the role of specifically legal principles in the process of adjudication against arguments to the contrary from Larry Alexander and Ken Kress is offered. But the acceptance of legal principles does not entail a validity relation between the law and morality as supported by Alexy. As a theory of norms, the principle theory fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption under rules or the balancing of principles. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights as it is developed in Alexy’s main work “A Theory of Constitutional Rights”. The most promising aspect of Alexy’s principle theory could be its contribution to a more comprehensive theory of legal argumentation.