A discussion of Robert Alexy’s theory of constitutional rules and constitutional principles as a model for adjudication

Abstract

The paper discusses Robert Alexy’s ‘Theory of Constitutional Rights’ with particular reference to his theory of principles and the distinction he draws between constitutional rules and constitutional principles (fundamental human rights). According to Alexy, fundamental human rights as protected by the German Basic Law are principles which have a distinct character from rules, even though both are norms. This distinction necessarily requires the application of the principle of proportionality (Verhältnismäßigkeitsgrundsatz) to constitutional cases dealing with the restriction of a constitutional principle (fundamental right) in favour of another. Alexy argues that there is an intimate connection between the principles theory and the application of the principle of proportionality in the adjudication of constitutional rights cases. However, this affirmation has not been free from criticism: both the theory of principles as well as the proportionality principle have been objected to by various scholars refuting any proximate link between the two and claiming that the application of the proportionality principle may lead to irrationality because it does not offer any solid criteria upon which adjudication is to be effectuated. Despite the various objections to the proportionality principle, it is submitted that they fail to overthrow the proportionality principle as an adjudicative technique.