2011 | 3(104) | 113-129
Article title

ALEXY'S THEORY OF CONSTITUTIONAL RIGHTS (Teoria praw podstawowych Roberta Alexy'ego)

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One of the most important Robert Alexy's books, 'A Theory of Constitutional Rights' has been recently translated into Polish. This fact offers an opportunity to recall and to examine critically the main features of the theory presented in this work, with particular emphasis on the theory of legal principles and the notion of balancing of legal principles. The article begins with a discussion of methodological features of Alexy's theory of constitutional rights. It may be characterized as a dogmatic theory, and as such it possesses analytic, empirical and normative aspects. However, although the theory has been designed as pertaining to the German constitutional order, its analytic (conceptual) dimension ascribes an universal character to it. The conceptual scheme elaborated by Alexy may be used as a tool for analysis of any constitutional system. Then, the famous distinction between legal rules and legal principles is addressed. Robert Alexy is known as one of the most influential legal theorists in this particular field. He states that the principles can be best accounted for as optimization requirements, that is, the norms which require something be realized to the greatest extent possible, taking into account factual and legal possibilities. Rules, on the other hand, can be only complied with or not complied with. The distinction between the abovementioned types of norms is particularly visible in the case of normative conflicts. The conflicts of rules are resolved by means of second-order rules, while collisions of principles are dealt with in concrete situations by means of weighing (balancing). The article concentrates on the problem of rationality of legal balancing. As regards this issue we present Alexy's views defended in 'A Theory of Constitutional Rights' and in his later work. In particular, the problem of comparison between the degree of infringement of a principle and the level of importance of realization of a colliding principle is discussed. The problem of rationality of constitutional weighing is related to the legal-philosophical issue of the nature of constitution. Constitutions may be perceived as foundations determining the whole content of a legal order on question or as frameworks for legal systems. Alexy claims that his conception of basic rights is coherent with a correct version of the latter view. He contends that his theory of legal principles guarantees a sufficient protection of constitutional rights, due to the fact that disproportionate infringements of basic principles ought to be deemed unconstitutional.
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  • Tomasz Gizbert-Studnicki, Uniwersytet Jagiellonski, Wydzial Prawa i Administracji, ul. Bracka 12, 31-005 Krakow, Poland
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