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Constitutional Rights, Democracy, and Representation

Robert Alexy    University of Kiel, Germany    



The question of how the legal power of a constitutional court to overturn acts of parliament can be justified is the central theoretical issue in the field of constitutional review. The  thesis of this paper is that constitutional review is justified on the basis of principles theory on the one hand and on the basis of the theory of “argumentative representation” on the other. The norm-theoretic basis of principles theory is the distinction between rules and principles. If the form of application of the rules is subsumption, by contrast, the form of application of principles is balancing. Constitutional rights have essentially the character of principles, and Balancing presupposes scales, which in constitutional law are possible only as crude discrete scales. The legal reasoning implies a new concept of democracy. An adequate concept of democracy must comprise not only decision but also argument.

01 Dicembre 2014
Copyright: © 2014 Robert Alexy. This is an open-access work distributed under the terms of the Creative Commons Attribution License (CC BY). The use, distribution or reproduction is permitted, provided that the original author(s) and the copyright owner(s) are credited and that the original publication is cited, in accordance with accepted academic practice. The license allows for commercial use. No use, distribution or reproduction is permitted which does not comply with these terms.