THE DISTINCTION BETWEEN RULES AND PRINCIPLES IN THE THEORY OF FUNDAMENTAL RIGHTS

Abstract

The substantial difference of the principles as optimization mandates is a transcendental issue because it is the basis of Alexy’s Theory of Principles. From this presupposition, the justification and effectiveness of the Principle of Proportionality is derived, which is the method for interpreting the constitutional contents and resolving the problems that arise in constitutional justice. This article addresses the distinction between rules and principles, distinguishing the qualitative difference that results from identifying principles as optimization mandates, a position that is confirmed by describing the different objections to the distinction, in contrast to the arguments that refute them. In this context, the validity of the distinction between principles and rules is upheld, and we therefore adhere to the thesis of the connection between the theory of principles, including the principle of proportionality, and fundamental rights.