The balancing of rules and some problems of the robert alexy's principles theory

Abstract

This paper deals with the distinction between rules and principles and analyzes some aspects of the widespread thesis of the qualitative distinction supported by ronald dworkin and robert alexy. from an example involving two norms of the Brazilian constitution that treat of the substitution of the president of the republic, and through an analytical approach, assent to a critique that involves one of the main elements of the theory of principles: That balancing is the form of application of the principles. it is argued that balancing is a technique for solving normative conflicts which, exceptionally, can also be used for the application of rules, resulting in several consequences. Thereby, some essential topics in this context are discussed, such as normative defeasibility, prima facie character, subsumption and balancing, dimension of weight and optimization requirements. in the end, taking into account the criticisms pointed out, a possible criterion of distinction is exposed based on the behavioral and structural differences between the normative species.