The Theory of Principles as a Foundation of Polish Constitutionalism
Robert Alexy’s theory is a pillar of modern legal thought, defining law not as a dry set of paragraphs, but as a system with a claim to correctness. In "hard cases," where clear directives fall silent, this concept allows for the rationalization of the adjudicative process by appealing to moral values. Central to this is the view of principles as optimization requirements, which must be fulfilled to the highest possible degree, considering both legal and factual constraints. Consequently, law becomes a space for genuine dialogue about justice, rather than a mere machine for mechanical subsumption.
Rules vs. Principles: Definitive and Optimization Requirements
Alexy introduces a qualitative distinction between rules and principles. Rules are "all-or-nothing" norms—if their conditions are met, they are definitively binding. Conflicts between them are resolved through derogation or an exception. Principles function differently: they do not fail when they yield to another value; instead, they remain in the system as prima facie reasons.
This distinction serves as a correction to Kelsen’s "pure theory of law" and offers a compass in the "penumbra" (the gray area of language) described by H.L.A. Hart. Unlike Dworkin, who believed in a single right answer, Alexy proposes a process of balancing, where the outcome depends on the specific set of facts and the weights assigned to competing values.
The Principle of Proportionality: Suitability, Necessity, and Weight
The tool for resolving collisions between principles is the principle of proportionality, consisting of three stages: suitability (does the measure advance the goal?), necessity (was the least invasive measure chosen?), and proportionality in the narrow sense. This final step relies on the weight formula, which accounts for the intensity of interference (I), the abstract weight of the principles (W), and the reliability of empirical premises (R).
This operation finds analogies in decision psychology (triggering analytical System 2) and the economic study of opportunity cost. Alexy also analyzes the essential core of fundamental rights—in either an absolute version (an impassable boundary, e.g., dignity) or a relative one (what remains after balancing). The transparency of these parameters builds the legitimacy of judgments, preventing judicial arbitrariness.
Ritual Slaughter: The Polish Constitutional Tribunal Resolves a Conflict of Values
A practical test of the theory was the dispute over ritual slaughter, where religious freedom clashed with animal welfare (rooted in public morality). Although the Polish Constitutional Tribunal granted primacy to religious freedom in 2014, Alexy’s method allows for different conclusions if the intensity of animal suffering is treated as a parameter with higher empirical weight.
In Poland, the reception of this thought is ambivalent: it enjoys academic acclaim but is often marginalized in political practice. Party decision-makers frequently treat the law instrumentally, ignoring the rigor of rational justification. The instrumentalization of law and the rift between academic and political culture are the primary challenges for Polish constitutionalism, necessitating a return to the transparent balancing of values.
Summary
Law, contrary to appearances, is not merely a collection of statutes, but a reflection of our deepest ethical and social convictions. Alexy’s theory reminds us that in the process of balancing values, there are no easy answers, and every decision carries consequences that we must bear with full awareness. Are we ready to stand honestly before this mirror and admit what we truly value and what we are willing to sacrifice?
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