| A court normally applies legal principles to a concrete hard case under the following two circumstances: one is that there is no applicable rule and the other is that, although there is an applicable rule, the rule cannot be applied due to its conflict with legal principles. Normatively speaking, the above two circumstances can be understood as collisions of legal principles. The question of how to determine which one among the competing principles applies to a concrete case is exactly what Robert Alexy's principle theory, especially the law of competing principles, tries to solve. The core to the application of the law of competing principles is to identify and establish conditions of precedence or variables. Compared with Alexy's weight formula, common understanding of social life or the nature of things ("Natur der Sache") can offer more concrete practical methods of identification and establishment of conditions of precedence or variables, which becomes the identification and establishment of the midpoint between the facts of a case and the outweighed principle applicable to the case. Thus, concretization of principle is the natural result of the application of the law of competing principles and methods of identifying and establishing conditions of precedence or variables. The concrete process is to establish one outweighed principle among the competing principles on the basis of conditions of precedence or variables, and to create a rule through the application of the outweighed principle, namely, Regelung von Fall zu Fall. The conditions of precedence or variables thus become one of the constitutive requirements of the rule or Regelung von Fall zu Fall, which constitutes the direct basis of the judgment on a concrete hard case. |
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