To the Search of Another Model of Difference Between Constitutional Principles and Rules

Abstract

Abstract This chapter presents a model for distinguishing between constitutional principles and constitutional rules, emphasizing that it concerns a legal-doctrinal difference that emerged with modern constitutionalism. In this context, principles are defined as reflexive mechanisms in relation to rules, and the circular connection between them becomes the focus of analysis. It also discusses the performance of principles and rules in the process of constitutional concretization as well as pointing out the requirement of a constitutional principle theory adequate to the complexity of contemporary society, even in the context of transconstitutionalism. This chapter is divided into five sections: locating the problem and conceptual contours; constitutional principles as a result of the positivization of law: principles and rules as an internal difference of the legal system; the circular relationship between constitutional principles and rules; from optimization to competition: limits of ‘balancing’; and intra-principle collision, double contingency, and functional differentiation of society: towards a complex theory of principles.