Legalism vs. Constitutionalism: Rules, Principles, and Practical Reason

Legal Discourse and Participation

What does each participant in a speech accepting the other as valid or partner? They want maximum benefit.

Legalism's Core Formulas

What are the four short formulas of legalism?

• Norm rather than value
• Subsumption instead of weighting
• Independence of the ordinary law rather than the ubiquity of the constitution
• Democratic legislature's autonomy within the framework of the constitution rather than judicial omnipotence

Contrasting Legalism

What would be four short contrarium sensu formulas to legalism?

• Value instead of standard
• Weighting instead of subsumption
• Omnipresence of the constitution instead of the independence of ordinary law
• Judicial omnipotence supported by the constitution rather than the autonomy of the democratic legislator within the framework of the constitution

Constitutionalism vs. Legalism

Who is right, constitutionalists or legalists? Constitutionalism

Rules vs. Principles

What is the turning point for the distinction between rules and principles?

Principles are optimization commands. Rules have the character of final mandates.

Legal Weighting

What is weight? A method of applying the law that characterizes principles.

Applying Rules

What kind of question is the application of the rules? Whether only rules with the structure of rules and also those with the structure of principles should be considered elements of the legal system.

Conflicting Principles in Law

What are the two principles involved in the conflict between Article 2 of the penal code and the right of the accused in Robert Alexy's view?

• Principle of the effectiveness of criminal law enforcement
• Principle of protection of life and limb

Which of the two principles is declared void? None

What determines the eventual resolution of similar cases? It depends on the relative weights of the opposing principles.

Values vs. Principles

What is the difference between a collision of values and a collision of principles?

Collisions of principles concern what must ultimately be the right thing. Collisions of values concern what is ultimately best.

Critique of the Rules/Principles Model

What is the methodological objection to the rules/principles model? That it's always possible to argue the legal system contains a solution, but this isn't a legal argument.

Elements of a Weak Order

Under Robert Alexy, what are the three elements of a weak order of rules and principles?

(1) a system of precedence conditions, (2) a system of weighting structures, (3) a prima facie precedence system

Axiological vs. Ethical Patterns

What character has a pattern that says "better or worse?" Axiological status

What character has a pattern that says "right thing?" Ethical character

Characteristics of Legal System Models

Name two characteristics of the model of legal system rules. Relationship of attachment and opening.

Point out two features of the legal system of rules/principles.

• It basically keeps the level of binding rules.
• Furthermore, it is a closed system to the extent that there are always principles that can be used, and therefore, there is nothing in any case that may not be decided on the basis of legal criteria.

Elements of a Weak Order Explained

What is each of these three elements?

(1) A system of precedence conditions provides information about the relative weight of principles.

(2) A system of weighting structures requires the broadest possible realization within factual and legal limits.

(3) A prima facie precedence system loads the argument set.

Alexy's Model of Rules, Principles, and Procedures

Under Robert Alexy, what distinguishes a model of a legal system of rules, principles, and procedures (characteristics)?

The results of the analysis of the rule/principle model are ambivalent. On the one hand, a theory of principles structures a weak order for rational legal decisions in areas with legal gaps, opening the legal system.

Practical Reason in Law

What are the two tasks to be fulfilled by a process that ensures maximum practical reason in law?

• The first is the rationality of the membership of the legal system as a standard of rules and other principles.
• The second is the knowledge of legal methodology, recognizing that no methodical system of rules establishes only one result.

Argumentation's Role

What is the role of argumentation in this latest model? Argumentation is not institutionalized.

Postulates of Practical Rationality

What are the four procedural postulates of practical rationality?

(1) a high degree of linguistic and conceptual clarity, (2) a high degree of empirical information, (3) a high degree of universality, (4) a high degree of impartiality

Moderate Constitutionalism

What is Robert Alexy's conception of the legal system that allows for further practical reason? A moderate constitutionalism