Constitutionalism and the Paradox of Principles and Rules Between the Hydra and Hercules 1st edition by Marcelo Neves 0192653954 9780192653956

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ISBN-10 :  0192653954 

ISBN-13 :  9780192653956

Author : Marcelo Neves 

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.

Constitutionalism and the Paradox of Principles and Rules: Between the Hydra and Hercules 1st Table of contents:

1. From Classic Distinctions Between Legal Principles and Rules
1. Norms Between Texts and Facts
2. Imprecision, Discretion, and Generality as Criteria for Distinguishing Between Principles and Rules
3. Reference to Goals and Values as a Criterion for Distinguishing Between Principle and Rules
2. Through the Still Dominant Models of Division Between Constitutional Principles and Rules
1. Moral-Philosophical Background of the Turn in the Theory of Legal Principles
2. All-or-Nothing versus Dimension of Weight (Ronald Dworkin)
3. Definitive Reasons versus Optimization Requirements (Robert Alexy)
3. To the Search of Another Model of Difference Between Constitutional Principles and Rules
1. Locating the Problem and Conceptual Contours
2. Constitutional Principles as a Result of the Positivization of Law: Principles and Rules as an Internal Difference of the Legal System
3. The Circular Relationship Between Constitutional Principles and Rules
4. From Optimization to Competition: Limits of ‘Balancing’
5. Intra-Principle Collision, Double Contingency, and Functional Differentiation of Society: Towards a Complex Theory of Principles
4. The Use and Abuse of Principles: From Doctrine to Practice in Brazilian Constitutional Law
1. From Doctrinal Fascination …
2. . . . To the Confusing Legal-Constitutional Practice
5. Final Comment: Judge Iolaus

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Tags: Constitutionalism, the Paradox, Principles, Rules, the Hydra, Hercules, Marcelo Neves