Theory of a Phantom : The Principles Theory’s Futile Quest for its Object

In his theory of fundamental rights, Robert Alexy has taken up Ronald Dworkin’s distinction between rules and principles and developed it into an all-encompassing principles theory of fundamental rights and in later works of law in general. The principles theory presupposes the existence of legal principles. At first sight, this seems a fairly unsuspicious assumption, since legal principles have formed part of the inventory of our legal universe for ages. But when the principles theory refers to legal principles, it does not refer to the rich diversity of traditional legal principles like the standard of the reasonable man, good faith, and the like. When the principles theory refers to legal principles, it refers to a theoretical dualism, according to which there are only two kinds of norms: rules, which allow for precise subsumption, and principles, which were originally associated with optimization requirements. When Alexy discovered that optimization requirements have all the characteristics that his theory associates with rules, he started a quest to rediscover the object of his theory. He now proposes that principles are an “ideal ought”. The article challenges Alexy’s attempt to reconstruct the object of his theory. It shows why the distinction between rules and principles as proposed by the principle theory is theoretically misguided. The principles theory should give up on its attempt to promote doctrinal conceptions in specific fields of the law – most prominently of fundamental rights as optimization requirements – with misguided theoretical concepts. If it wants to promote its balancing idea in an area of the law, it cannot do so from the high road of legal theory, but has to support it with doctrinal arguments, which most of the time, though, support more differentiated approaches