TITLE:
Two Competing Views on Formal Principles
AUTHORS:
Alexandre Travessoni Gomes Trivisonno, Júlio Aguiar de Oliveira
KEYWORDS:
Principles’ Theory, Models of Formal Principles, Constitutional Rights, Judicial Review
JOURNAL NAME:
Beijing Law Review,
Vol.15 No.3,
September
26,
2024
ABSTRACT: This article presents two different proposals concerning the role that formal principles play in judicial review. Its methodology consists first in presenting the concept of formal principles and the models of formal principles that have been developed within principles’ theory. Then it compares the existing models and, after that, it presents two different and new views, which are not comprised within the existing models. The first view, proposed by the first author, defends that formal principles can appropriately reconstruct judicial review insofar as they can embody both deviance (to a certain extent) and uncertainty that are present when authorities create the law. The second view, which is defended by the second author, does not understand formal principles as a necessary complement of principles’ theory. According to this view, the only thing principles’ theorists needed to do to answer the criticism that affirms that principles theory transforms the parliamentary democracy into a judicial state was explaining the institutional background of the theory, which is established by German’s Fundamental Law concerning judicial review.