Some Thoughts About the Limits of Alexy’s Conception of Principles and Balancing

Abstract

With no doubt, Robert Alexy is one of the most relevant legal theorists of the last decades. Among his multiple and valuable contributions to legal theory, his thoughts about legal principles and balancing should be highlighted, to the point that it is not possible to engage any serious analysis on these topics without considering the contributions of the German philosopher. I will try to argue, though, that his positions suffer from some problems that should be addressed. First, regarding the distinction between rules and principles, I try to show that the ‘optimisation’ criterion does not seem to work as intended, i.e. to explain a structural or categorial difference between both types of norms. Second, regarding Alexy’s conception of balancing and the proportionality principle, I conclude that it is problematic in at least the following aspects: (1) The link between legal principles and balancing; (2)~The link between balancing and the proportionality principle; (3) The universalist or particularist character of Alexy’s conception of balancing; and (4) The plausibility of the ‘weight formula’.