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Jan-R. Sieckmann
The logical distinction of rules and principles as suggested by Dworkin and Alexy, which has caused much controversy but also has proven to be extremely fruitful, connects the notion of principles with that of balancing. The question then is how to understand reasons for balancing judgments. They must include an ideal ought that goes beyond of what actually is required. The nature of such an ideal ought is difficult to explain, however. Alexy's recent definition as an ought that abstracts from contrary reasons fails, just as his previous attempts of defining principles as optimisation requirements or as requirements to be optimized. The key to understanding an ideal ought is – so I will argue – the relation between the reasons for balancing judgments and these judgments themselves. This justificatory relation cannot be inferential, but must be understood as normative, that is, the justification consists in that one is doing what one ought to do. In this line, reasons for balancing judgments can be defined as normative arguments that do not have the structure of propositions, but that of reiterated requirements of validity. The reiteration thesis as well as the non-propositionality thesis will be explained and defended against some objections.
