Chapter

Common Law Thinking in German Jurisprudence—on Alexy's Principles Theory

Jan Henrik Klement

in Institutionalized Reason

Published in print February 2012 | ISBN: 9780199582068
Published online May 2012 | e-ISBN: 9780191739354 | DOI: http://dx.doi.org/10.1093/acprof:oso/9780199582068.003.0008
Common Law Thinking in German Jurisprudence—on Alexy's Principles Theory

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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’.

Keywords: principles theory; German legal system; court; constitutional rights; common law; constitution

Chapter.  15165 words. 

Subjects: Jurisprudence and Philosophy of Law

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