THE NORMATIVE (ETHICAL) POTENTIAL OF EVALUATIONS AND PRINCIPLES IN KARL LARENZ’S LEGAL METHODOLOGY AND ROBERT ALEXY’S THEORY OF LEGAL DISCOURSE

Abstract

The subject of this article is the relation between evaluations and principles in the context of the work of Karl Larenz and Robert Alexy. Its starting point is the assertion that the names of Larenz and Alexy are associated with closely related problems, which can be said to be two sides of the same coin. We are discussing the issue of values and principles, which are embodied primarily in the concepts of open axiological and deontological norms. These norms are applied in the so-called hard cases, which are so-called because they require dealing with an open normative system (Hart’s open texture). Since the competence of a lawyer cannot be limited to the ability to apply only codified rules, all this allows us to characterize the stated topic as relevant for research. The purpose of the article is to reveal the normative (ethical) potential of evaluations and principles based on the examples of Larenz’s legal methodology and Alexy’s theory of legal discourse. It is specified in the following questions: (1) what is common and what is different between Larenz’s legal methodology as a theory of evaluations and Alexy’s theory of legal discourse as a theory of principles; (2) how evaluations and principles, on the one hand, and axiological and deontological legal norms, on the other hand, are related; and (3) how Larenz’s axiology of law implicates the only correct decision in complex cases, while Alexy’s deontology of law denies this. In (1), the relationship between Larenz’s legal methodology and Alexy’s theory of legal discourse is shown through the prism of Alexy’s thesis that the “theory of principles is a theory of values freed from uncertain premises”. In (2), the structure, possible content, and modal character of axiological and deontological norms, which are based on the distinction between values and principles, are analyzed. In (3), the author explains why Larenz’s axiology of law has as a prerequisite the recognition of the possibility of reaching the only right decision in complex cases and shows how Alexy’s deontology of law solves the same ethical and legal problem by denying such a possibility, namely, by assuming the existence of several right decisions, one of which takes precedence over the other in a particular case. It is concluded that what Larenz’s legal methodology and Alexy’s theory of legal discourse have in common is a positive attitude towards the methodological/argumentative idea of the correctness of law, and what differs is the way of solving the relevant problem, which in the first case is based on the concept of evaluation, and in the second – on the concept of principles. However, this does not prevent us from imagining evaluations and principles as two faces of the mythical Janus as a symbol of open legal methodology (and/or open theory of legal argumentation). Axiological and deontological norms have the same structure and content but different modal character: evaluative or deontic, i.e., oriented to the concepts of good or duty. Their open nature is also different – subjective in the first case and objective in the second – since axiologically open law is open because the possibilities of a lawyer as a human being are not unlimited and deontologically because there is a logical place for contingent law alongside imperative law. Larenz’s axiology of law implies the existence of a given objective normative order in advance, and therefore it implies the recognition of the possibility of obtaining the only correct decision. Alexy’s theory of legal discourse as a deontology of law exemplifies the consequences of rejecting the possibility of obtaining the only correct decision in simple and complex cases. The normative (ethical) potential of the jurisprudence of evaluations and the theory of legal discourse should be assessed as equal. However, Alexy’s development today is superior to Larenz’s, for example, in terms of consistency, practicality, terminological elegance, etc.