Insights,Errors and Self‐Misconceptions of the Theory of Principles |
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Authors: | RALF POSCHER |
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Institution: | Ruhr‐ University BochumFaculty of LawChair of Public Law, Sociology and Philosophy of LawUniversit?tsstra?e 15044801 Bochum, GermanyE‐mail: Ralf.Poscher@rub.de |
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Abstract: | The theory of principles is multifaceted. Its initial expression contained an important argument against positivist theories of adjudication. As a legal theory, it fails in its effort to claim a structural difference between rules and principles. It also fails as a methodological theory that reduces adjudication to subsumption or balancing. It misunderstands itself when it is conceived as a doctrinal theory especially of fundamental rights. Its most promising aspect could be its contribution to a more comprehensive theory of legal argumentation. |
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