
Contents
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A. Introduction A. Introduction
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B. The Model of Principles—The Basics B. The Model of Principles—The Basics
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(1) The model of principles as a structural theory of constitutional rights (1) The model of principles as a structural theory of constitutional rights
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(2) Principles as norms (2) Principles as norms
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(a) Two different kinds of norm (a) Two different kinds of norm
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(b) On the definitive character of norms (b) On the definitive character of norms
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(c) Principles as reasons for norms, norms as products of principles (c) Principles as reasons for norms, norms as products of principles
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(3) Principles as optimization requirements (3) Principles as optimization requirements
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(a) Content of an optimization requirement (a) Content of an optimization requirement
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(b) Principles as the subject matter of optimization requirements (b) Principles as the subject matter of optimization requirements
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(c) A nexus between optimization requirement and principle? (c) A nexus between optimization requirement and principle?
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C. The Principles Theory and the Constitutionalization of Law C. The Principles Theory and the Constitutionalization of Law
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(1) Constitutionalization (1) Constitutionalization
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(2) The principles theory as a descriptive and explanatory theory (2) The principles theory as a descriptive and explanatory theory
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(3) The principles theory as a normative theory (3) The principles theory as a normative theory
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(a) The wide theory of scope (a) The wide theory of scope
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(b) Constitutional justification for rights to positive state action (b) Constitutional justification for rights to positive state action
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D. Principles Theory and Common Law D. Principles Theory and Common Law
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(1) The thesis (1) The thesis
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(2) Loss of the constitution's binding effect (2) Loss of the constitution's binding effect
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(a) Norm-establishing effect of the principles theory (a) Norm-establishing effect of the principles theory
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(b) From rules to principles (b) From rules to principles
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(c) On the character of rules as principles (c) On the character of rules as principles
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(3) ‘The case governs the norm’ (3) ‘The case governs the norm’
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E. Summary E. Summary
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8 Common Law Thinking in German Jurisprudence—on Alexy's Principles Theory
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Published:February 2012
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Abstract
This chapter sounds out the limits of the principles theory. It does so by focusing on two theses. The first is that Alexy's model set up a theoretical fundament for constitutionalizing the German legal system following the Second World War, but failed to provide a normative basis for this development. The second thesis is that in court practice treatment of constitutional rights is changing under the influence of the principles theory, that the courts are adopting an approach familiar to the common law. The principles theory makes it easier to bring about ‘justice in each individual case’, but at the same time it undermines what is meant by the classic Continental European notion of the binding effect of the constitution on its interpreters. If we are to meet this agenda, we must begin by examining some of the terms used in the model of principles, in particular ‘norm’, ‘principle’, and ‘optimization requirement’.
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