Ratio Juris. Vol. 5 NO.

2 July 1992 (143-52)

copyright 0Robert Alexy 1992

Rights, Legal Reasoning and

Rational Discourse
ROBERT ALEXY

Absfract. The first part of this article contains an analysis of the concept of a right,
which implies a rational structure of reasoning about rights, elaborated in the second
part. In the third part both the concept of a right and reasoning about rights are
connected with the theory of rational discourse. The author’s thesis is that there
exists an internal relation between the theory of rights and the theory of legal
reasoning.

My thesis is that there is an internal relation between the theory of rights and
the theory of legal reasoning. You cannot have an adequate theory of rights
without having a theory of legal reasoning, and an adequate theory of legal
reasoning presupposes a theory of rights. But this is only the first step. It is
not enough to connect the theory of rights with a theory of legal reasoning.
One needs a reason for making this connection a necessary one. This reason
can be found in the theory of rational discourse which is the basis of the
whole system. This is the reason why the title of my paper is “Rights, Legal
Reasoning and Rational Discourse.”
My paper is divided into three parts. The first part deals with the theory of
rights. In the second part I will say something about rights in legal reasoning.
The topic of the third part is the relation between fundamental rights and
rational discourse.

I. Theory of Rights
1. The Concept ofa Right
It is impossible to present an elaborate theory of rights here, and, fortu-
nately, it is unnecessary, too. I will confine myself to two distinctions which
form the basis of my argument.
144 Robert Alexy

a) Strong and Weak Concepts of Rights

The first distinction is the distinction between a strong and a weak concept
of a right. A strong concept of a right is a concept according to which all
features which are considered important in connection with rights are
elements of the concept of a right. Famous examples of strong concepts are
found in Jhering’s theory, which defines rights as “legally protected
interests” (Jhering1906,339), and in Windscheid’s definition of rights as “a
power of willing or a superiority of will conferred by the legal order” (Wind-
scheid 1906, 156). Other theories which presuppose a strong concept are
sceptical theories of rights which first treat the existence of a right as an
element of the concept of a right, and then - by denying the existence of
rights - are easily able to declare the concept of a right to be an empty one.
All strong concepts of rights have a serious disadvantage. They transform
highly disputed substantial questions of the theory of rights into con-
ceptual ones.
Weak concepts of rights try to avoid this. According to them, rights are
legal relations (cf. Alexy 1985, 185-94). Perhaps the most important right-
relation is that of a claim-right. It is a normative relation between three
elements: the right-holder (a), the addressee of the right (b), and the subject
matter of the right (G). By using the right-operator “R“ we can express a
claim-right in the following way:

(1) R u b G

The proposition that a has a right against b with respect to G is equivalent to

the proposition that b has an obligation towards u with respect to G:

(2) 0 b u G.

This formula expresses a relative obligation. Claim-rights and relative

obligations are two aspects of the same thing. They are, to put it in logical
terms, converse relations.
The subject matters of claim-rights can be acts or forbearances. In the first
case we have a positive, in the second a negative right. In a liberal consti-
tution negative constitutional rights directed against the state prevail. In a
socialist constitution we find a lot of positive rights against the state, namely
social rights.
This analysis could be much more elaborate. It would then lead to further
basic types of rights, namely to liberties and powers, and to a logic of rights,
which could follow ideas of Bentham (1970, 57f., 82ff., 98, 119, 173f.),
Bierling (1883,49ff.)and Hohfeld (1923,35ff.).For our purposes one insight,
which can easily be taken from what has already been said is sufficient:
Rights are special types of norms. It is not true that each and every norm
expresses a right. But if there is a right then there is a relative obligation, and
 Rights, Legal Reasoning and Rational Discourse 145

if there is a relative obligation then there is a right. A sentence which

expresses a relative obligation is a sentence which expresses a norm (Alexy
1985, 163). If all this is true, talking about rights is nothing mysterious at all.
When we talk about rights, we simply talk about a special kind of norms.
Now we can go back to our distinction between strong and weak concepts
of rights. The weak concept proposed here makes a clear distinction between
rights and reasons for rights (Alexy 1985, 165ff.). The protection of the free
will or of fundamental interests are not elements of the concept of a right, but
possible reasons for rights, and as reasons for rights they are reasons for
norms. What is more, they are not the only possible reasons for rights. In
principle, each reason for a norm can be a reason for a right.’ So, for
instance, the efficiency of the economy, which is a collective good, might be
named as a reason for an individual property right. We, too, have a simple
solution to the problem of the existence of rights. A right exists when the
norm to which it corresponds is valid. That means that a legal right is existing
when there is a valid legal norm to which it corresponds. Even the problem
of the relationship between legal rights and legal argumentation seems to be
solved. The argumentation connected with legal rights seems to be the same
as the argumentation connected with the application of norms in general.
There seems to be no special rights-discourse. That this is not entirely wrong
but nevertheless somewhat superficial at a crucial point, will become
obvious once we look at our second distinction. It is the distinction between
rules and principles or between definitive and prima facie rights.

b) Rules and Principles

The second distinction is a distinction between two kinds of norms, namely
between rules and principles.’ Rules are norms that, given the satisfaction
of specific conditions, definitively command, forbid, permit, or empower.
Thus they can be characterized as “definitive commands.” Rights based on
rules are definitive rights. Principles are norms of a completely different
kind. They are commands to optimalize (Alexy 1988,143f.).As such they are
norms commanding that something must be realized to the highest degree
that is actually and legally possible. The legal possibilities, in addition to
being dependent on rules, are essentially determined by means of opposing
principles, a fact that implies that principles can and indeed must be
balanced. Rights based on principles are prima facie rights (Alexy 1985,75ff.).

’ According to the Federal Constitutional Court of Germany there are two reasons for the
freedom of speech as a fundamental or constitutional right: the individual good of free
development of personality and the collective good of free communication in society (BVerfCE
82, 43 (52); 82, 236 (268)) which again is a necessary condition of another collective good, the
democratic process (BVerfCE 82, 272 (281)).
This distinction is highly disputed. Cf. Esser 1974; Dworkin 1978, 14-80; Raz 1972, 851ff.;
Alexy 1979, 59ff.; Sieckmann 1990.
146 Robert Alexy

2. Application and Justification of Rights

The distinction between rules and principles has far-reaching consequences
for the application and the justification of rights. First I will look at the appli-
cation of rights.

a) The Application of Rights

The concept of the application of a right sounds somewhat queer. It is quite
clear what it means to have a right, but what can be meant by the application
of a right? To be sure, strictly speaking, it is always the norm granting the
right which is applied. Nevertheless it makes sense to speak of the appli-
cation of a right. I will try to demonstrate this by looking at fundamental or
constitutional rights.
Fundamental or constitutional rights are rather abstract rights. Examples
are the rights to freedom, to equality, to freedom of speech, or to property.
If you want to work with these rights in a legal context, you must make them
more concrete. This is one reason for talking about the application of rights.
But it is not the decisive one.
The decisive reason is the necessity to delimitate abstract fundamental
rights. It is typical for modern constitutions that they first grant a funda-
mental right and then add a clause which allows the parliament or the
administration to delimitate or restrict the right. This creates a well-known
problem which can be solved if the distinction between rules and principles
is used. The problem is that a constitutional right against the state, which
includes a clause that empowers the state to delimitate or restrict that right,
seems to be of no or nearly no value. And indeed, it is of no or nearly no value
if the right is conceived as granted merely by a rule. Then there would be a
rule which allows for any exception. By making exceptions the right could be
taken away completely. The right as such could not develop any power of its
own against restrictions or delimitations (Alexy 1987, 411). Naturally, one
could try to introduce an additional rule limitating the limitation of the right.
In the constitution of the Federal Republic of Germany we find such a rule
in a clause which forbids taking away the essence of a constitutional right
(art. 19 sec. 2). But how is one to determine the essence? And, what is more
important, should the state be completely free to delimitate rights provided
it does not take away the essence?
The picture changes completely if the right is conceived as granted by a
principle (Alexy 1985, 78ff., 1OOff.). The delimitation problem becomes a
problem of optimalization. That means that constitutional rights have to be
realized to the highest degree that is actually and legally possible. The actual
possibilities of realization depend on alternative ways of action. If a limi-
tation of a constitutional right is not necessary in order to realize the legis-
lator’s aims, especially if there are means apt to realize the legislator’s aims
which interfere with the right less intensely, then there is a higher actual
 Rights, Legal Reasoning and Rational Discourse 147

possibility of realizing the right and the delimitation is forbidden by the

principle which is the basis of the right. The legal possibilities of realization,
in addition to being dependent on rules, are determined essentially by
means of opposing principles. These opposing principles can refer either to
colliding constitutional rights of other individuals or to collective goods. In
any case of collision a weighing or balancing becomes necessary. In the
determination of the actual as well as the legal possibilities of realization the
constitutional right has a power or force of its own. That is the reason for
conceiving constitutional rights as prima facie rights, that is, as rights based
on principles. If we follow this proposal, the application of a right is more
than a mere subsumption of a case under a rule. It is a weighing or balancing
process. More will be said about this in the next chapter.

b) The Justification of Rights

Not only is the application of rights deeply affected by conceiving them as
prima facie rights based on principles. The same holds true for their justifi-
cation. It is a general truth that the weaker a proposition the easier its
justification. The proposal of a prima facie right is a rather weak proposal.
Nothing is decided about what is definitely obligatory. A socialist, provided
he is not a fanatic, can accept a general right to individual liberty as a prima
facie right. He can hope to be able to delimitate it in a weighing process
according to his political ideals. And a libertarian, again provided he is not a
fanatic, can accept a general right to social care as a prima facie right. He, too,
can hope to be able to reduce it in a weighingprocess accordingto his political
ideals, for instance to transform it into a definitive right with a minimal
content.
In this way a theory of fundamental rights seems to be possible consisting
of a list of all abstract fundamental rights which might be taken into con-
sideration. Such a theory would be a rather weak, perhaps even a poor
theory, but nevertheless it would not be without any value. It would contain
the starting points of discourses about definitive rights. The weakness of
such a list is an explanation why even during the dark times of cold war
international agreements on human rights have been possible. That shows
that such a list is no more than a first step. The next step is the determination
of the relative weights of different prima facie rights. That leads to the second
part of my argument, which deals with the role of rights in legal reasoning.

11. Rights and Legal Reasoning

Two different forms of norm application are corresponding to the distinction
between rules and principles: subsumption and weighing or balancing. The
concept of a right is compatible with both. A legal system may contain a lot
of individual rights not resting on principles. It is easy to give examples of
148 Robert Alexy

rights granted by rules which can be applied by subsumption without going

into a weighing process. Rights resulting from the application of contract
law, the law of torts, taxation law and administrative law could be adduced.
To be sure, the application of rules granting these kinds of definitive rights
is often not an easy task. There are many cases in which vagueness, ambi-
guity, evaluative openness, contradictions or gaps preclude a decision by
simple deduction. In these cases subsumption is only a framework in which
legal reasoning has to take place in order to make the decision a rational one
(Alexy 1989, 221ff.). But that kind of legal reasoning has no special relation
to the concept of a right. It is legal reasoning in general.
The picture changes if the legal system contains rights resting on prin-
ciples. Before looking at the changes, I first want to ask under what con-
ditions a legal system contains rights resting on principles.

1. Perfect and Imperfect Rights Systems

In a legal system like that of the Federal Republic of Germany it is easy to
answer the question. The constitution contains a catalogue of fundamental
rights, and, what is more, art. 1sec. 3 explicitly declares them to be directly
applicable law, binding the legislator, the administration, and the jurisdic-
tion. The binding force of the fundamental rights is controlled by the Federal
Constitutional Court, which, for this purpose, has extensive power. Such a
system can be called a perfectly institutionalized fundamental rights system.
In a system of this kind each application of rules - actually or potentially -
involves fundamental rights. In cases of vagueness, for instance, the judge
has to look at the impact of those fundamental rights which might be affected
by his decision (BVerfGE 7, 198 (205ff .)). And a judge who simply applies a
rule must be sure that its strict application will not infringe any fundamental
right.
There is no doubt that things are different in systems which are not per-
fectly institutionalized fundamental rights systems, for instance because
they lack fundamental rights at the constitutional level or because they have
no constitutional court. My thesis is, however, that - provided they are
systems of the Western democratic and constitutional type - rights never-
theless play an important role in them, at least from a substantial point of
view. In those legal systems the role of fundamental rights is due to legal
practice, and inside legal practice it is manifested by legal reasoning. From a
critical point of view it can be argued that fundamental rights should be
furthered by Iegal practice and institutionalized by political decision.

2. Weighing and Argument

I now want to ask how the existence of fundamental rights based on prin-
ciples affects legal reasoning. The crucial concept has already been men-
tioned. It is the concept of weighing or balancing. The concept of weighing
 Rights, Legal Reasoning and Rational Discourse 149

is a contested concept. Some authors are of the opinion that it is no more than
a camouflage for pure decisions or intuitions (Forsthoff 1959,35ff.; Schmitt
1967, 37ff.).This criticism would be correct, if there were no rational weigh-
ing procedure. My thesis is that there is a rationally structured weighing
procedure.
The rationally structured weighing procedure is supplied by the theory of
principles. Principles are commands to optimalize. As such they imply what
in German legal terminology is called the rule of proportionality (Verhiiltnis-
rniiJ3igkeitsgrundsatz)(Alexy 1985, lOOff .). This rule comprises three sub-rules:
the rule of suitability (Grundsatz der Geeignetheif), the rule of necessity
(Grundsatz der Erforderlichkeit), and the rule of proportionality in the
narrower sense (GrundsafzderVerhiiltnismiipigkeitim engeren Sinne). I will first
have a look at the first and the second rule, that is at the rule of suitabilityand
the rule of necessity. Both are implied by the fact that principles are norms
commanding that something must be realized to the highest degree that is
actually possible. Suppose the legislator introduces a norm N with the
intention of advancing the security of the state. N infringes on the freedom
of speech. The security of the state can be conceived as the subject of a
principle, aiming at a collective good. This principle shall be called P,. The
freedom of speech can be conceived as the subject of a fundamental
individual right based on a principle. It shall be called P,. Now suppose that
the norm N is not suited to further PI, that is the security of the state, but
nevertheless infringes on P,, that is the freedom of speech. In this case of
unsuitability there is an actual possibility of realizing both principles taken
together to a higher degree by declaring N as invalid than by accepting N as
valid. Accepting N as valid would involve no gains for PI but only losses for
P,. Such a solution would not be Pareto-optimal. Rights as principles
demand Pareto-optimality.
The deduction of the second rule, the rule of necessity, is quite similar.
Suppose there is an alternative N' to Nwhich is sufficiently suitable to realize
PI, but infringes less on P, than N. In this situation PI and P, taken together
forbid N. N is not necessary to realize P,, because P, can be realized at a
lower cost. It is again a matter of Pareto-optimality.
The third sub-rule of the rule of proportionality, the rule of proportionality
in the narrower sense, is different in character. It becomes relevant when an
act performed by the state is both suitable and necessary to realize the aim the
state wants to realize. Let us take a legislator who wants to prevent as per-
fectly as possible people becoming infected with AIDS. He passes a law
prescribing that all people infected with AIDS are to be put into lifelong
quarantine. There is no doubt that public health and therefore the protection
of uninfected people are goals worth pursuing. Now, suppose that lifelong
quarantine is both suitable and necessary if the spread of AIDS is to be con-
trolled as strictly as possible. In this situation the rule of proportionality in
the narrower sense requires that the rights of those infected with AIDS must
150 Robert AIexy

be taken into account. It forbids following only one principle, that is, to be
fanatic. The content of the idea of proportionality in the narrower sense can
be expressed in the following rule:

The more intensive the interferencein one principle is, the more important must be
the realization of the other principle. (Alexy 1985, 146)

This rule tells us how to argue when one principle can be realized only at the
expense of the other. We have to investigate the intensity of the interference,
in our example the intensity of the interference with the rights of those put
into lifelong quarantine, and the importance of the reasons for that inter-
ference. But at the same time it is clear that the rule only tells us the direction
of argument. It does not prescribe any result. Someone for whom individual
rights are of no great value can apply the rule by favouring the collective good
of public health. By doing so he will come to the result that a lifelong
quarantine is justified. Someone for whom individual rights are of great
value will achieve the opposite result by applying the same weighing rule.
A critic of the theory of principles might maintain that the possibility of
divergent results just demonstrated shows that the whole theory or at least
the concept of weighing is worthless. But this would be a mistake. In general
practical reasoning as well as in legal reasoning one cannot expect to obtain
a method which provides a definitive solution to each hard case. What can be
created are rational structures of reasoning. It is difficult to deny that the
structures implied by conceiving rights as principles are rational. I therefore
would like to fix as an intermediate result that fundamental rights based on
principles imply a rational structure of legal argumentation orientated
towards the concept of weighing or balancing, and that a rational structure
of legal argumentation implies that fundamental rights must be based on
principles. With this we have more than nothing, but not yet enough. In
order to achieve more we now have to look at the relation between rights and
rational discourse.

111. Rights and Rational Discourse

I. The Idea of Rational Discourse
A rational practical discourse is a procedure of testing and grounding
normative and evaluative statements by way of argument. The rationality of
discourse is defined by a set of discourse rules (Alexy 1989, 188ff.). These
rules guarantee the right of each human being to participate in discourses
and the right of each participant of discourses to put forward and to criticize
any argument. Other rules, for instance those which forbid contradictions or
those which demand linguistic clearness, empirical truth, consideration of
consequences, and scrutiny of the genesis of normative convictions are of no
 Rights, Legal Reasoning and Rational Discourse 151

special interest here. For the argument I want to put forward here, I only
need the idea of freedom and equality in argument, which is the normative
basis of discourse theory. Discourse theory claims that an argumentation
which excludes or suppresses persons or arguments - except for pragmatic
reasons, which have to be justified - is no rational argumentation, and the
justifications gained in it are faulty. I cannot argue for this here; I will take it
for granted.

2. Rational Discourse and the Justification of Individual Rights

A discourse is a collectiveenterprise. Nevertheless discourse theory does not
express any collectivistic ideal at all. That individuals have to argue with
others in order to be rational is an expression of the idea that each and every
person is to be taken seriously. What holds true in rational argument about
legal and political questions has implications for the answers given to such
questions. My thesis is that the result of a rational discourse would be a
system of fundamental individual rights which includes a prima facie prefer-
ence for individual rights over collective goods (Alexy 1992). The lifelong
quarantine-solution to the AIDS-problem would not survive the test of
practical discourse, because it turns this preference around.

3. Rational Discourse and the Application of Rights

In many cases the answer is not so clear. Discourse theory is no machine
which determines the weights of rights exactly, objectively, and definitely,
but it shows that rational argument about rights is possible.
Christian-Albrechts University
Faculty of Law
Olshausenstrafle 40
D-2300 Kiel 7
Germany

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