Giovanni Battista Ratti's Critique of Principles Theory

• Published date: 01 June 2023
• Author: Robert Alexy
• Date: 01 June 2023
• DOI: http://doi.org/10.1111/raju.12377

© 2023 University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 36 No. 2 June (153–159)

Giovanni Battista Ratti’s Critique

of Principles Theory

ROBERT ALEXY*

Abstract. Ratti has attacked principles theory in two respects. The first is that it is impossible to

distinguish between rules and principles. The second is that the main thesis of principles theory,

which says that balancing is the specific way of applying principles, is wrong. The result of

Ratti’s critique is his thesis that principles theory founders on a contradiction or, as Ratti calls it,

an antinomy. All of this is based on two arguments: Ratti’s disapplication argument and his law

of concretization. I attempt to reject this analysis, for it is incomplete. It claims to be an analy-

sis of balancing, but it misses the decisive point of balancing. Informed by this background, I

defend the distinction between rules and principles as a distinction of the real and the ideal

“ought.”

1. Introduction

The distinction between rules and principles and its connection with proportion-

ality analysis are the basis of principles theory. In A Theory of Constitutional Rights

(Alexy2002) I define rules as definitive commands. Their form of application is sub-

sumption. In contrast to this, principles are defined as optimization requirements. As

such, they demand that something be realized “to the greatest extent possible given

the legal and factual possibilities” (ibid., 47). The legal possibilities are determined

essentially by opposing principles. For this reason, principles, each taken alone,

always comprise a merely prima facie command. The determination of the appro-

priate degree of satisfaction of one principle relative to the requirements of another

principle is brought about by balancing. Thus, balancing is the specific form of appli-

cation of principles.

Principles theory connects this distinction with the thesis of a necessary connec-

tion between principles and proportionality analysis. Proportionality analysis pro-

ceeds in three steps: suitability, necessity, and proportionality in the narrower sense.

Suitability and necessity refer to optimization relative to the factual possibilities,

proportionality in the narrower sense to optimization relative to the legal, that is,

normative, possibilities (Alexy2017, 14– 6).

Ratti attacks all of this. According to him it is “impossible to distinguish between

rules and principles” (Ratti2023, 48), and my thesis, “that the specific way to apply

 *I should like to thank Stanley L. Paulson for suggestions and advice on matters of English

style.