Luigi Ferrajoli

Basic Rights and Democracy. Two Objections to Robert Alexy

  • Abstract

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Keywords: Directive Principles; Regulative Principles; Basic Rights; Constitutional Hierarchies; Division of Powers.

From the point of view of legal theory, the paper 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 recurring to constitutional hierarchies, which the interpretative activity of judges identifies and 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. Only by this interpretation of basic rights as regulative principles it is possible to get the idea of division of powers inside the constitutional state subject to the rule of law.

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