Formal principles: Some replies to critics

• Autores: Robert Alexy
• Localización: International journal of constitutional law, ISSN 1474-2640, Vol. 12, Nº. 3, 2014, págs. 511-524
• Idioma: inglés
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• Dialnet Métricas: 13 Citas
• Resumen

  • 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. To this thesis, the objection of overconstitutionalization has been raised. 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 the last 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. In the article it is argued that both models are mistaken, and an epistemic model is proposed that finds its expression in the epistemic variables of the weight formula.