On the Structure of Legal Principles

The author presents his thesis that legal bases are optimization commands. He presents this thesis as an attempt to grasp the structure of the balancing exercise and to lay the foundations for the constitutional principle of proportionality. In doing so, he then addresses some of the problems associated with the optimization thesis. First, it examines the objection that there are no principles, but only different ways of applying standards. Second, he discusses the problems of the concept of optimization control and the nature of the « duty » contained in the principles. He concludes that distinguishing between commands to optimize and commands to optimize is the best way to grasp the nature of principles. The American democratic system is not always based on the simple majority rule. Certain principles are so important to the nation that the majority has agreed not to interfere in these areas. For example, the Bill of Rights was adopted because concepts such as freedom of religion, freedom of expression, equal treatment and due process were considered so important that even a majority should not be allowed to change them. Influencing the formation of laws by principles of morality, politics and morals is sometimes consistent, sometimes less so. The moral principle of individual freedom, for example, is expressed in a positive legal order as freedom of contract. However, a legal system that enshrines the principle of freedom of contract does not allow for the validity of all agreements concluded between individuals. A marriage vow is not binding under many positive legal systems; Similarly, contracts for immoral behavior.

The principles of morality, policy, and etiquette discussed in this chapter can only be called « legal principles » in the sense that they influence the creation of legal norms by the competent judicial authorities. But they remain principles of morality, politics and morals, and they must be clearly distinguished from legal norms whose content coincides with them. The courts play an essential role in upholding the rule of law, particularly when they hear complaints from minority groups or persons who may hold minority views. Equality before the law is so integral to the U.S. system of government that when a majority, intentionally or unintentionally, violates the rights of a minority, the Court sees fit to hear both sides of the controversy in court. The Constitution of the United States is the fundamental law of the nation. It codifies people`s core values. The courts are responsible for interpreting the meaning of the Constitution as well as the meaning of all laws passed by Congress. The Federalist #78 further states that when a law passed by Congress conflicts with the Constitution, « the Constitution is preferable to the Statute, the intention of the people for the purpose of their agents. » More than 200 years ago, Alexander Hamilton, James Madison, and John Jay published a series of essays promoting ratification of the U.S. Constitution, now known as the Federalist Papers. In explaining the need for an independent judiciary, Alexander Hamilton noted in The Federalist #78 that the federal courts were « designed as an intermediary between the people and their legislature » to ensure that the people`s representatives acted only within the authority conferred on Congress by the Constitution. « This conclusion in no way implies a superiority of the judiciary over the legislative power.

It only assumed that the power of the people was superior to both; and that if the will of the legislature, declared in its statutes, is contrary to the will of the people proclaimed in the Constitution, judges should be governed by the Constitution and not by the former. They should regulate their decisions by basic laws and not by non-fundamental ones. The rule of law is a principle by which all persons, institutions and bodies are accountable to laws that: Mark Dimunation talks about the Federalist Papers. The collection of 85 essays by Alexander Hamilton, James Madison and John Jay was written between 1787 and 1788 to encourage states to ratify the Constitution. KielGermany0431/880-3543 (tel.)0431/880-3745 (fax) `Legal norms and legal principles: Esser`s theory of transformation` Subscribe to this free journal for more curated articles on this topic.