Abstract
The central objective of this essay is to demonstrate the main problems concerning Robert Alexy’s theory of legal principles. The debate on legal principles has achieved one of the most important scientific constructions on Robert Alexy’s work. Principles are one of the main important arguments on disputing legal positivism, once jurists have been using them as “tools” that conduct moral justifications throughout legal practice. At least, this is the interpretation of Robert Alexy’s legal philosophy. Stating out as one of the finest legal theorists, Robert Alexy conceives legal principles as norms different in their structure from legal rules. That distinction, among others, allows Robert Alexy to understand the concept of Law as a non-positivist concept.
However, my intent is not to analyse all the points with reference to legal principles, but to elucidate why, in my opinion, Robert Alexy’s structural definition of legal principles cannot be accepted. Firstly, I shall try to explain, in a few words, the main foundations of Robert Alexy’s theory of Law, as a presupposition of his conception of legal principles; secondly, I will try to demonstrate why his primarily version of the theory of legal principles cannot be supported; thirdly, I will try to explain why the second version of his theory of legal principles is, however, incoherent.
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Notes
- 1.
Robert Alexy’s theoretical edifice is supported by the previous philosophical understanding of legal discourse as a special case of general practical discourse. Legal discourse is a special type of general practical discourse because it implies a practical argumentation on individual’s conducts. The main difference is that, whereas in general practical discourse individuals argue about their conducts, regardless what legal order determines, in legal discourse individuals argue about their conducts with reference to a specific system of permissions, prohibitions and obligations. Meaning, they argue with reference to a specific legal system.
- 2.
This thesis is known as the Exklusionstheorem, meaning a theory of exclusionary identification. This is a central axiom in Robert Alexy’s conception (Bäcker 2011, p. 57).
- 3.
Another central aspect in his theory is the description of his formal Law of balancing (Abwägungsgesetz). Once legal theorists recognise a specific optimisation structure concerning the nature of legal principles, they will also recognise a technical principle (which, in fact, is a technical rule) that allows solving conflicts between principles. This formal principle, or rule, is the principle of proportionality. The conceptual theory of legal principles, as optimisation mandates, implies a theory of the principle of proportionality as a technical rule that enables solving conflicts between legal principles. The recognition of the principle of proportionality is a consequence of the principle’s optimisation nature. It can be deduced from it (Alexy 2010, p. 66). The principle of proportionality includes three sub-principles—suitability, necessity, and proportionality in narrow sense.
Whenever two principles collide, one must decide which principle prevails. If one of the two principles prevails over the other, that means that the defeated principle will be restricted. The rule that contains the prior conditions, which allow solving the conflict, is a restrictive norm concerning to the excluded principle. As legal principles have an optimisation structure, they ought to be fulfilled to the greatest extent possible. If all principles ought to be fulfilled to the greatest extent possible, given factual and legal possibilities, then, each principle’s restriction must not exceed what is necessary to satisfy the prior conditions of the prevailing principle. To achieve this stage of minimum constraint, it is necessary to apply the principle of proportionality. This principle implies, as stated before, three steps. The first one is suitability. Suitability means that restrictions must be deemed appropriate to fulfil the objective proposed—meaning, the restrictions shall be apt to realise the priory conditions of the prevailing principle. The second step is necessity. It signifies that the pursuit of the goal shall be accomplished by using the least intrusive means. Finally, the third step is proportionality in narrow sense. Proportionality in narrow sense means that the more severe is the restriction, the more important must be the interests supported by the prevailing principle.
The principle of proportionality permits the fulfilment of legal principles. Suitability and necessity realise principles in a factual dimension (Pareto-optimality) while proportionality in narrow sense realises principles in a legal dimension.
The criterion of Pareto-optimality determines which solutions are best among all solutions that are, in fact, possible. In its original version, Pareto-optimality classifies as optimal solutions those to which there is any alternative better for someone, that does not cause any disadvantage to someone else’s (Sieckmann 2010, p. 103).
- 4.
In Robert Alexy’s theoretical comprehension, balancing is structurally defined by arithmetic formulas, whereas subsumption is developed by logical and deductive reasoning. Nevertheless, both legal methods of argumentation are dependent upon previous judgements made by legal practitioners (Alexy 2003, pp. 433–448).
- 5.
To solve conflicts between legal principles, Robert Alexy sustains that legal practitioners use external arguments, meaning moral arguments with the purpose of fulfilling collision and balancing Laws. Once these formal and moral arguments are necessary to complete the rational and legal discourse, they consequently establish a connection involving Law and morality. Robert Alexy uses this theoretical construction to refute legal positivism.
- 6.
- 7.
The introduction of an exception to a legal rule or the determination of invalidity of one rule could be a result of a previous balancing operation, which forces us to accept balancing method in solving rule’s collisions.
- 8.
Even the necessity of previous conflicts between norms as a presupposition of legal balancing is dubious. For instance, when legal practitioners have to apply a legal norm, for example, a norm from the Penal Code which imposes a sanction for a specific criminal act, within a minimum 5 year penalty to a maximum 10 year penalty, they often use the balancing method when they try to understand what the most effective and most adequate sanction is to establish a concrete penalty for a convicted criminal. Determining whether a criminal should be punished with a 5 year incarcerated penalty or a 10 year incarcerated penalty involves a balancing reasoning. And yet, there is no conflict with other norms.
- 9.
This leaded some literature to sustain that legal principles are norms which impose the achievement of a specific state of affairs, while rules prescribe a means to an end, meaning, a conduct to accomplish a specific state of affairs.
If a legal norm imposes that X ought to be, and if X contains necessarily the effect Y, then prescribing X is equivalent to prescribing the realisation of the effect contained in X—that is, the effect Y. If the effect Y signifies the achievement of a state of affairs, then the effect Y is the goal set forth by the imposition of X. When a legal norm imposes a specific end—the end Y—, that legal norm seeks the realisation of a specific state of affairs. If many conducts are able to accomplish that same state of affairs, then every one of those same conducts are considered to be permitted by that same legal norm. Therefore, the effect X, stipulated by a legal norm as a specific state of affairs, is equivalent to all conducts which allow the accomplishment of that same state of affairs. This means that the distinction based on the idea that some legal norms prescribe objectives, while other legal norms prescribe means to an end is a misunderstanding theory of the real norm’s material content. While in a legal norm which prescribes an end, all the conducts that allow the realisation of the norm are permitted, in a legal norm which does not prescribes a goal are some conducts only permitted, i.e., those conducts specifically identified within that norm’s normative sense.
This signifies that this distinction is a quantitative one, and not a qualitative one. Principles would be norms which permitted more conducts comparatively to rules. Therefore, a legal principle cannot be defined as a norm seeking an ideal ought, because this concept is a qualitative notion on the nature of principles.
- 10.
For that same reason, legal principles like legal rules project their effects in a closed or definitive way, because, once the empirical conditions are fulfilled, the projection of legal effects is made in an absolute manner, not gradual (Aarnio 1997a, p. 33).
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Acknowledgements
I would like to thank David Duarte and Pedro Moniz Lopes for their comments on an earlier draft of this paper.
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Ramião, R. (2018). Some Fundamental Problems Concerning Alexy’s Notion of Legal Principles. In: Duarte, D., Silva Sampaio, J. (eds) Proportionality in Law. Springer, Cham. https://doi.org/10.1007/978-3-319-89647-2_8
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