I diritti fondamentali come dimensioni della democrazia costituzionale
From the point of view of legal theory, Ferrajoli distinguishes directive principles and regulative principles. The firsts enact to pursue constitutional purposes; the seconds are both principles in the form of arguments and definite rules which are applied by subsumption. Basic rights are regulative principles as they have nature both of arguments, as all the principles, and of rules. If consequently the greater part of basic rights are rules which are applied by subsumption, normative conflicts should be solved not by balancing, but by recurrimg to constitutional hierarchies, which the interpretative activity of judges identifies und discovers. From this it results that Alexy’s theory of balancing is a wrong reconstruction of legal reasoning. This theory furthermore brings the danger to subtract judicial activity to the binding force of the law.