원칙이론의 기본권이해와 헌법국가

This article tries to analyse the premises of Principle Theory and those effects on theories of constitutional law. Principle Theory presents fundamental rights as principles, and principles as optimization commands. The range of protection of fundamental rights is, therefore, determined by a balancing which means the optimization commands. The concept of optimization commands is reinterpreted as the Weight Formula. This formula provides the mechanism for the solution of constitutional problems. There are three methodical requirements in Principle Theory. First, the scales the theory has set forth cannot be handled in constitutional law, for those are too demanding. Second, the theory can create the commensurability of constitutional values that can be scales as cardinal. Third, the theory is likely to eliminate legislative power. It can be said that principle theory does not endorse the Rahmenordnung-model, but the Grundordnung-model. Since Principle Theory is founded on the conception of optimization, this approach has various effects on theories of constitutional law. The theory conforms with the constitutional state in which the constitutional court achieves a dominant position. Functions of lawmaking and jurisdiction are likely to converge. The idea of Principle Theory is based on the idea of substantial constitutional state that requires the sovereign position of the constitutional court.