Preface to a Debate

• Date: 01 March 2020
• DOI: http://doi.org/10.1111/raju.12275
• Published date: 01 March 2020
• Author: Massimo La Torre

© (2020) John Wiley & Sons Ltd.

Ratio Juris. Vol. 33 No. 1 March 2020 (3–5)

Preface to a Debate

MASSIMO LA TORRE

The discourse-theory approach to legal reasoning, as developed by Professor Robert

Alexy, focusing on and stressing the relevance of reasoning and interpretation in

legal practice, leads to a rich concept of law, both challenging the positivist dominant

view as well as opposing efforts to reintroduce the old thesis of “law as force,” ac-

cording to which force would count as a paradigmatic feature of law. Alexy defends a

“special case thesis,” holding that legal discourse represents a special case of general

practical discourse. Legal argumentation is guided by a claim to correctness that is

rooted in legal controversy and deliberation. All legal judgments claim to be correct,

and this assertion implies a claim of justifiability. In this regard, legal argumentation

takes the form of a practice of mutually asking for and giving reasons. Correctness of

discourse is here grounded in the use of rules and procedures, open to intersubjective

justification.

Professor Alexy also addresses the meaning, nature, and role of basic rights, and

provides a sophisticated design for constitutionalism. In this perspective, modern

constitutions do not consist primarily of rules—i.e., norms which are always either

fulfilled or not, and which could be meant as “definitive commands,” but rather con-

sist of principles—which are conceived as norms requiring that something be realized

to the greatest extent, given the legal and factual possibilities at hand. Constitutional

principles would therefore be “optimization requirements,” which in certain specific

situations could clash, giving rise to conflicts of constitutional rights. In light of such

an account of principles, the difference from rules is not one of degree but one of

“type” or “structure.” The application of principles, it is argued, requires a particular

process of weighing and balancing, markedly different from the deductive operation

involved in the application of rules. The normative solution of conflicts of principle

thus lies in the operation of balancing, which represents the specific form of appli-

cation of principles. Balancing provides the appropriate degree of satisfaction of one

principle relative to the requirements of a conflicting principle, and the final norma-

tive solution is a function of the specific weight of the principles actually involved.

This distinction between rules and principles therefore plays a crucial role in Alexy’s

interpretation of constitutional rights, as the latter essentially have the character of

principles, and the balancing between them seems unavoidable. Balancing will then

be driven by a proportionality standard.

An essential connection between constitutional rights and the idea of propor-

tionality is then reasserted through a “weight-formula,” which would lie at the core

of balancing. Proportionality, on such an account, consists of three subprinciples: