Luigi Ferrajoli’s Two Objections to the Principles Theory of Constitutional Rights

Abstract

Ferrajoli has raised two objections to the principles theory of constitutional rights. The first concerns the institutional question of the democratic legitimacy of the control of the democratically legitimized parliament by a constitutional court, the second the methodological question of the kind or model of argumentation by means of which the unconstitutionality of a norm can be determined. The basis of principles theory is the distinction between rules and principles. Rules are definitive commands. Principles are optimization requirements. Principles as optimization requirements imply proportionality analysis, and balancing is an essential element of proportionality analysis. My main thesis against the methodological objection is that balancing is a form of rational argumentation, if it follows the lines explicated by the Weight Formula. Ferrajoli argues that not balancing but subsumption is the rational method of the application of constitutional rights. He suggests to substitute the balancing of constitutional rights by the consideration of all circumstances of the case in the context of subsumption. Against this I argue that the postulate to considerate all circumstances of the case is acceptable, but trivial. It is not able to reconstruct the rational solution of conflicts between constitutional rights and between constitutional rights and collective goods. For this the Weight Formula and the second law of principles theory, the Law of Competing Principles, are indispensable. On the basis of the methodological argument that rational balancing of constitutional rights is possible, constitutional review can be considered as an argumentative representation of the people, which is compatible with democracy. This connection of the methodological with the institutional argument leads to a justification of constitutional review.