Constitutionalism and the Paradox of Principles and Rules

Between the Hydra and Hercules
Erscheinungsjahr 2021
ISBN: 978-0-19-289874-6
Verlag: Oxford University Press, USA

Buch, Englisch, 224 Seiten, Format (B × H): 155 mm x 236 mm, Gewicht: 499 g

Reihe: Oxford Constitutional Theory

This title offers a unique approach to constitutionalism, focusing on the paradoxical relationship between principles and rules from the perspective of systems theory. It presents a critical counterpoint to Ronald Dworkin's principle-based theory, and in particular to Robert Alexy's idea of optimizing balancing. Instead of ceding to the compulsion of an optimizing balancing, it suggests the possibility of a comparative or at least 'satisficing' balancing, considering
the precariousness of legal rationality. The book also reverses Dworkin's metaphor, associating rules with Hercules and principles with the Hydra. It takes constitutional principles seriously, criticizing the abuse of principles by the legal and constitutional doctrine and practice, and pointing out
their relationship of complementarity and tension with rules. Finally, it offers an alternative model to the recent legal and constitutional theory on the basis of certain assumptions of the systems theory. It deals especially with the paradox of the circular and reflexive relationship between constitutional principles and rules: the former refers primarily to the openness and adequacy of legal system to society and thus to substantive argumentation; the second refers primarily to the closure
and consistency of legal system and thus to formal argumentation.

Autoren/Hrsg.

Neves, Marcelo

Fachgebiete

• Rechtswissenschaften Recht, Rechtswissenschaft Allgemein Rechtsphilosophie, Rechtsethik
• Geisteswissenschaften Philosophie Rechtsphilosophie, Rechtsethik
• Rechtswissenschaften Öffentliches Recht

Über Autor(innen)

Marcelo Neves received his LLB and LLM in Brazil, and in 1991 was awarded the Dr. Jur. degree at the University of Bremen Law School, in Germany (Grant of DAAD). In 2000 he was awarded the 'Habilitation' (postdoctoral degree) at the University of Fribourg, Switzerland. Marcelo is currently Full Professor of Public Law at the University of Brasília, in Brazil, appointed as of July 2011. Beyond several visiting appointments at German universities, he was also a
visiting scholar at the University of Oxford; Yale Law School; University of Glasgow; LSE; European University Institute (Florence); Stellenbosch Institute for Advanced Studies (South Africa).