OXFORD UNIVERSITY PRESS

Constitutionalism and the Paradox of Principles and Rules: Between the Hydra and Hercules

ISBN : 9780192898746

Price(incl.tax): 
¥14,608
Author: 
Marcelo Neves
Pages
208 Pages
Format
Hardcover
Size
156 x 234 mm
Pub date
Apr 2021
Series
Oxford Constitutional Theory
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This title offers a unique approach to constitutionalism, focusing on the paradoxical relationship between principles and rules from the perspective of systems theory. It presents a critical counterpoint to Ronald Dworkin's principle-based theory, and in particular to Robert Alexy's idea of optimizing balancing. Instead of ceding to the compulsion of an optimizing balancing, it suggests the possibility of a comparative or at least 'satisficing' balancing, considering the precariousness of legal rationality. The book also reverses Dworkin's metaphor, associating rules with Hercules and principles with the Hydra. It takes constitutional principles seriously, criticizing the abuse of principles by the legal and constitutional doctrine and practice, and pointing out their relationship of complementarity and tension with rules. Finally, it offers an alternative model to the recent legal and constitutional theory on the basis of certain assumptions of the systems theory. It deals especially with the paradox of the circular and reflexive relationship between constitutional principles and rules: the former refers primarily to the openness and adequacy of legal system to society and thus to substantive argumentation; the second refers primarily to the closure and consistency of legal system and thus to formal argumentation.

Index: 

Introduction
1 From Classic Distinctions Between Legal Principles and Rules...
2 ...Through the Still Dominant Models of Division Between Constitutional Principles and Rules...
3 ...To the Search of another Model of Difference Between Constitutional Principles and Rules
4 The Use and Abuse of Principles: From Doctrine to Practice in Brazilian Constitutional Law
Final Comment: Judge Iolaus

About the author: 

Marcelo Neves received his LLB and LLM in Brazil, and in 1991 was awarded the Dr. Jur. degree at the University of Bremen Law School, in Germany (Grant of DAAD). In 2000 he was awarded the 'Habilitation' (postdoctoral degree) at the University of Fribourg, Switzerland. Marcelo is currently Full Professor of Public Law at the University of Brasilia, in Brazil, appointed as of July 2011. Beyond several visiting appointments at German universities, he was also a visiting scholar at the University of Oxford; Yale Law School; University of Glasgow; LSE; European University Institute (Florence); Stellenbosch Institute for Advanced Studies (South Africa).

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