INTERPRETATION OF FUNDAMENTAL RIGHTS: SOME THOUGHTS ON THE THEORY OF WEIGHTS AND THE PRINCIPLE OF PROPORTION IN THE WORK OF R. ALEXY

Abstract

The interpretation of fundamental rights offers a rich debate in relation to what may be the best criteria for interpretation. Robert Alexy theory regarding the weighting is analyzed. They discuss some of the criticisms and objections that have been made regarding the weighting and the principle of reasonableness: whether it is a rational procedure for the application of legal rules or a mere rhetorical subterfuge, useful to justify certain judicial decisions. This leads to another problem such as how to apply the principles of constitutional courts by weighting and if they have legitimacy to do so. Several authors have argued that the weighting is nothing more than an arbitrary and Solomonic judgment and that therefore neither the judges nor the Constitutional Court have sufficient constitutional legitimacy to implement the principles by this procedure.

Keywords

• weight
• principles
• reasonableness
• interpretation