Between Conflict and Cooperation

The Role of Formal Principles in Reconciling the Legal and the Political

Abstract

The relationship between law and politics is traditionally characterised by an inherent tension. The question of which of the two entities has precedence when they conflict with one another is of particular significance, for there are good arguments for the primacy of either side. How can a conflict between two equal parties be solved? In this contribution, I advocate for a legally grounded and balanced solution for conflicts between law and politics. I interpret these conflicts as competence conflicts which are solvable by legal means. In order to provide a legal solution, I rely on Robert Alexy’s distinction of rules and principles. Based thereupon, I understand competences as rules which are governed by formal principles. These principles are balanced against each other. This way, an adequate order of competences – and with it an adequate relationship between law and politics – can be established.