SHS Web Conf.
Volume 118, 2021RUDN Conference on Legal Theory, Methodology and Regulatory Practice (RUDN LTMRP Conference 2021)
|Number of page(s)||7|
|Section||Modern Legal Science: Search for the Methodological Basis|
|Published online||23 August 2021|
Dichotomy of principles and rules in R. Alexy’s dual theory of law
RUDN University, Department of Law and State Theory, Law Institute, Moscow, Russia
1 Corresponding author: firstname.lastname@example.org
The purpose of the study is a comparative legal analysis of approaches to principles and rules in R. Alexy’s dual theory of law. The methodological basis of the study are the following fundamental methods of scientific knowledge: general methods (analysis, synthesis, induction, deduction, analogy), as well as special methods (comparative-legal and formal-legal). The application of these methods allowed to subject R. Alexy’s theory of law to an in-depth comparative legal study and to reveal the dichotomy of the principles and rules operating in it. The result of the study was the author’s conclusion that weighing formal and material principles is not only possible, but also a necessary process. In addition, it should be mentioned that the dictate of optimization always requires the implementation of a weighing procedure, and that principles in theory are always implemented indirectly through rules. The principles themselves are the subject of optimization, and the dictate of optimization is the rule. Thus, principles are the basis of rules, and rules are the product of principles. The novelty of the study lies in the author’s approach to the analysis of the dichotomy of principles and rules in the dual theory of law of R. Alexy, as well as the application of mathematical apparatus to substantiate the findings.
Key words: principles of law / optimization thesis / weight formula / proportionality principle / human rights
© The Authors, published by EDP Sciences 2021
This is an Open Access article distributed under the terms of the Creative Commons Attribution License 4.0, which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
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