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Books > Law > Jurisprudence & general issues > Jurisprudence & philosophy of law
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Constitutionalism and the Paradox of Principles and Rules - Between the Hydra and Hercules (Hardcover)
Loot Price: R3,272
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Constitutionalism and the Paradox of Principles and Rules - Between the Hydra and Hercules (Hardcover)
Series: Oxford Constitutional Theory
Expected to ship within 12 - 19 working days
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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.
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