|Article title||Two Particularistic Approaches to the Balancing of Constitutional Principles|
|Name of magazine||Scientific journal «Philosophy of Law and General Theory of Law» (Ukrainian language)|
The purpose of this paper is to examine and criticize two recent defenses of particularism in legal contexts, by L. Ferrajoli and B. Celano.
In both cases, the choice in favour of particularism concerns the balancing between constitutional principles, but the scope of this choice is very different in each of these authors: in Ferrajoli’s case, the option in favour of particularism (a term that is alien to his vocabulary) is rather residual, since most conflicts between principles can be solved, in his opinion, applying «abstract solutions», valid for any possible case. In Celano’s case, however, there is an explicit defense of a particularist approach to every case of conflict between constitutional principles and, more generally, to the whole sphere of practical reasoning.
The author of the article identifies three types of cases: 1) the simple case when there is a pre-established rules of conduct to be applied, and 2) cases where the enforcement authority is faced with a complete lack of rules of conduct and shall decide the case by substantive principles of law, and 3) the hard cases where advance is norm, but an appeal to the substantive principles indicates the impossibility of its application to the case under consideration.
|Keywords||particularism, constitutional principles, gap, Luigi Ferrajoli, Bruno Celano.|