Abstrakt
Leo Katz describes in his book with the provocative title "Why the law is so perverse" as one of the perversities in law that it is full of loopholes. His view of loopholes is, however, slightly different from the typical views known mostly from German (Canaris) or Austrian (Bydlinski) jurisprudence.
He tries to apply the results of social choice thoery to law, i.e. he applies e.g. the Arrow paradox, the Condorcet paradox or Borda voting to law and explains them on interesting legal problems like bootstrapping, tax shelters, asset protection or contrived defense. He also draws interesting conclusions - that the loopholes are immanent in law and cannot be closed and what is even more provocative, that the lawyers should exploit them.
After having the pl easure to discuss these conclusions with Leo Katz himself, the author of this paper will critically review this theory and try to apply it on legal principles. Legal principles in the Dworkin-Alexy theory.
The aim of this paper is thus to find out if the social choice theory cannot give as explanaition why it is so difficult to find an objective method of application of legal principles and if the application of legal principles do not lead us to cycle, to paradoxes exactly like in social choice theory. The result of this paper thus might be questioning of the basic method of application of legal principles in the theory of Robert Alexy and Ronald Dworkin - the balancing.