The author offers a sketch of his thesis that legal principles are optimization commands. He presents this thesis as an effort to capture the structure of weighing or balancing and to provide a basis for the principle of proportionality as it is applied in constitutional law. With this much in place, he then takes up some of the problems that have come to be associated with the optimization thesis. First, he examines the objection that there are no such things as (...) principles, but only different modes of the application of norms. Second, he discusses problems concerning the concept of an optimization command and the character of the "ought" contained in principles. He concludes that the distinction between commands to optimize and commands to be optimized is the best method for capturing the nature of principles. (shrink)

The purpose of the paper is to present a logical framework that allow to formalize a kind of prima facie duties, defeasible conditional duties, indefeasible conditional duties and actual (indefeasible) duties, as well as to show their logical interconnections.

Una concepción tradicional de la argumentación jurídica considera que se debe resolver casos jurídicos a través de subsunción y deducción. Hugo Zuleta disputa esta posición, rechazando así la "concepción puente" de las normas, la que fue defendida en particular por Carlos Alchourrón y Eugenio Bulygin. Según la "concepción puente" la norma condicional incluye una modalidad deóntica solo en su consecuencia, mientras su antecedente consiste en un enunciado descriptivo. En cambio, Zuleta propone la "concepción insular", que pone la modalidad deóntica adelante (...) del condicional ). Discutiré estas concepciones, evaluando su adecuación en distintos ámbitos de aplicación. En particular, defenderé la tesis de que la crítica a la "concepción puente" tiene razón en cuanto se trata de conflictos normativos. Así, la "concepción insular" puede tener una aplicación importante en la teoría de los principios, que trata justamente del análisis de normas en conflicto. The traditional conception of legal argumentation is that legal cases are resolved by means of subsumption and deduction. Hugo Zuleta disputes this position, rejecting the "bridge conception" of norms, which was defended in particular by Carlos Alchourrón and Eugenio Bulygin. According to the "bridge conception", the conditional norm includes a deontic modality only in its consequence, whilst the antecedent consists of a descriptive sentence. By contrast, Zuleta defends the "isle conception", which puts the deontic modality in front of the conditional ). I will discuss these conceptions, assessing their adequacy in distinct fields of application. In particular, I will defend the thesis that the critique of the "bridge conception" is correct in the case of norm conflicts. Thus, the "isle conception" can have an important application in the theory of principles and the analysis of norm conflicts. (shrink)

Should particularists about ethics claim that moral principles are never true? Or should they rather claim that any finite set of principles will not be sufficient to capture ethics? This paper explores and defends the possibility of embracing the second of these claims whilst rejecting the first, a position termed 'principled particularism'. The main argument that particularists present for their position-the argument that holds that any moral conclusion can be superseded by further considerations-is quite compatible with principled particularism; indeed, it (...) is compatible with the idea that every true moral conclusion can be shown to follow deductively from a finite set of premises. Whilst it is true that these premises must contain implicit ceteris paribus clauses, this does not render the arguments trivial. On the contrary, they can do important work in justifying moral conclusions. Finally the approach is briefly applied to the related field of jurisprudence. (shrink)

In recent years, the most widespread doctrine about the conflicts between fundamental (usually constitutional) legal rights could be summarized in the following three main theses: (1) The elements in conflict are legal principles, as opposed to legal rules; (2) Those conflicts are not consequences of the existence of inconsistencies or antinomies between the norms involved, but rather depend on the empirical circumstances of the case. In other words, the norms are logically consistent and the conflicts are not determinable a priori (...) or in abstracto , but only in concreto ; and (3) The classical criteria for solving conflicts between norms, such as lex superior , lex posterior and lex specialis , are not suitable to solve conflicts among fundamental legal rights. Indeed, they require a specific method known as ‘weighing and balancing’. Although all three theses could be (and indeed have been) regarded as problematic, in this paper I address mainly the second one. I try to show that there is room for a tertium genus between antinomies (deontic inconsistencies) and conflicts caused by strict empirical circumstances that I call ‘contextual antinomies’. There are situations in which the norms involved are not inconsistent but the conflict arises for logical reasons. My thesis is that many conflicts between fundamental legal rights fall in this category. I offer, in an appendix, a proposal of formalization of this kind of conflict and the elements involved in it. (shrink)