MAJOR TRANSFORMATIONS IN CONTEMPORARY LAW AND THE TEACHINGS OF ROBERT ALEXY

Abstract

The text examines the three major changes of paradigm in contemporary law, seen in parallel to Robert Alexy’s teachings. The author initially presents the phenomena of (i) the overcoming of legal formalism; (ii) the advent of a post-positivist legal culture; and (iii) the rise of public law and the centrality of the Constitution. The author then moves on to identify, in the work of Robert Alexy, the notion of the centrality of fundamental rights and of the Constitution, in contemporary law. The author also tackles the transformations in constitutional interpretation, focusing on (i) the recognition of the normative force of the Constitution; (ii) the expansion of constitutional jurisdiction; and (iii) the development of a new hermeneutics and of the new categories for a constitutional interpretation. Following this line, the notion of hard cases is approached against the background of ambiguity in language, reasonable moral disagreements and tensions in constitutional norms or fundamental rights. Alexy’s theory of principles is then introduced to portray how law should be operated so as to solve relevant conflicts in modern society. Finally, there is an emphasis on the counter-majoritarian and representative roles of the Supreme Federal Tribunal, as well as on Alexy’s writings about how constitutional tribunals carry out the argumentative representation of society.