Resuscitation of a Phantom? On Robert Alexy’s Latest Attempt to Save His Concept of Principle

• Published date: 01 June 2020
• Author: Ralf Poscher
• DOI: http://doi.org/10.1111/raju.12286
• Date: 01 June 2020

© (2020) The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

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Ratio Juris. Vol. 33 No. 2 June 2020 (134–149)

Resuscitation of a Phantom?

On Robert Alexy’s Latest Attempt

to Save His Concept of Principle

RALF POSCHER

Abstract. This paper is my contribution to round three of a longstanding debate between Robert

Alexy and me about the principles theory’s concept of principle. In the first round, Alexy—

bucking tradition—proposed a nongradualist distinction between rules and principles that

divided the ontology of norms into two categorically distinct norm-types. He connected this

norm-theoretical analysis with a theory of fundamental rights according to which such rights

had to be understood as principles and thus interpreted as optimization requirements. In the

first round I objected to the norm-theoretical assumptions and questioned the doctrinal merit of

the principles theory approach. Unlike Alexy, I saw no merit in his notion of principle over and

above optimization requirements, which by that time Alexy, too, regarded as rules. In round

two, Alexy defended his concept of principle by taking refuge in the notion of an ideal ought,

which he defined as a command to be optimized. In this second round, I criticized the new

attempt to save his view of principles on the ground that the norms Alexy had in mind opti-

mized not commands but states of affairs and thus were ordinary norms or rules according to

the misguided taxonomy of the principles theory. Alexy opened round three of our exchange

by admitting that my critique of round two was justified and that he had erred in identifying

principles as ideal commands to be optimized. He now proposes an index theory of principles.

In the paper, I recapitulate the motive and the main points of our debate and scrutinize Alexy’s

latest innovation.

The goal of my critique is not so much to deconstruct an idiosyncratic norm-theoreti-

cal ontology but rather to break the spell that this misguided but in some parts of the

world very influential theoretical position exerts on the interpretation of fundamen-

tal rights as optimization requirements.

This is a longstanding debate that began some fifteen years ago with a chapter

in my habilitation in which I criticized both the doctrinal merits and the theoretical

foundations of the principles theory, namely, their peculiar dichotomy of principles

and rules (Poscher 2003, 72–84). Now is my turn in round three of our exchange.

However, before I evaluate Robert Alexy’s latest attempt to make sense of his non-

gradualistic notion of principle, I wish to do three things.

First of all, I want to assure the reader that the debate, though longstanding, is

not personal. I have always been an admirer of Robert Alexy’s work. When I was

a student, his book on legal argumentation made a considerable impression on me,

not just for its substance but also for its interdisciplinary approach and analytical

clarity. It reintroduced an analytical style into the German legal debate, which was

otherwise often cluttered with rhetorical posturing and strong opinionating. Robert

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Ratio Juris, Vol. 33, No. 2 © (2020) The Authors. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Resuscitation of a Phantom?

Alexy’s work was and still is an inspiration for those who seek a rigorous approach

to legal theory.

Second, I wish to clarify what our disagreement is not about or what is not the aim

of my critique in the theater of legal theory.

Third, I wish to briefly recapitulate rounds one and two, since I neither presume

nor expect persons with no special interest in idiosyncratic theoretical debates to be

familiar with them.

Only then will the stage be set for round three: Here, I will try to give a fair ac-

count of Robert Alexy’s latest move, a paper in late 2017 that opened this round in

response to my previous critique in round two. I will then address this latest attempt

to salvage the principles theory’s peculiar notion of principle. Since the assessment

turns out to be negative, the last part of the essay is dedicated to the question of why

Robert Alexy and his followers are so committed to their special notion of principle

and do not settle for optimization requirements. What—aside from the obvious fact

that they are heavily invested in their specific notion of principle—drives them to

cling to a notion that proves to be theoretically indefensible?

1. What the Disagreement Is Not About

Having cleared up the first point at the outset, it is of considerable importance to

offer a preliminary clarification of what our argument is not about. This clarifica-

tion is twofold: First, it concerns the peculiar notion of principle that is contested;

second, it aims to avoid the possible misconception that the critique of Alexy’s

peculiar notion of principle also concerns optimization requirements—which it

does not.

1.1. Legal Principles

Framing our debate as one over the existence of legal principles simpliciter gives rise

to an ambiguity that may create a gross misunderstanding. I am not arguing against

the existence of legal principles. In fact, I am much more open to legal principles than

Robert Alexy is. Not only do I think that there are many legal principles, I also think

that these principles have many different types of content. I also agree that there may

be some principles whose content consists of optimization requirements. However, I

doubt that all legal principles have only this type of content, and I doubt that they

form an ontologically separate class of norms that is categorically distinguishable

from some supposedly clear-cut rules.1

I think that there are principles of equality or fairness, for example, whose content

differs from optimization requirements and that these principles, like optimization

requirements, are only gradually—in their level of abstractness and importance—

distinguishable from the other, more concrete types of norms that the principles the-

ory likes to call rules. My argument is not directed against the idea of legal principles

but only against the—in my view—misguided way in which the principles theory

tries to hypostatize principles with a specific but theoretically contingent content into

an ontologically distinct type of norm. I thus side with the gradualist understanding

of the distinction between legal rules and principles espoused by just about everyone

1 Cf. Möller 2007, 455, 458–61, for a similar critique.