University of Transnational Business Law

Rules and Principles

by Juan Ruiz Manero


I. Some remarks about the discussion on principles in contemporary legal theory

As far as legislative texts are concerned, there is a long tradition of reference made to legal principles, which it is usual to date back to the Austrian Civil Code of 1811. With respect to legal theory, there is also a long tradition in civil law countries of reference made to legal principles, good examples of which can be found in the works of Esser[1] (in the hermeneutical trend), Del Vecchio[2] (in the natural law trend) and Bobbio[3] (in the positivistic trend).

However, the discussion abut principles became a central point in recent legal theory since a now famous article by Ronald Dworkin, published in 1967 under the title “Is Law a System of Rules?”[4] (later included as chapter 2 in “Taking Rights Seriously”[5]). The fundamental purpose of that article was to attack what Dworkin himself called "the most powerful version of legal positivism", namely, H.L.A. Hart´s legal theory. According to Dworkin, one of the main drawbacks of that theory is that it cannot account for the presence in law of standards which are different to rules, that is, principles. This also makes it impossible for Hart´s construction to comprehend essential aspects of legal reasoning in so-called hard cases. According to Dworkin, rules and principles differ for the following reasons:

"Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision [...] But this is not the way [...] principles [...] work. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met [...] Principles have a dimension that rules do not - the dimension of weight or importance. When principles intersect [...] one who must resolve the conflict has to take into account the relative weight of each [...] Rules do not have this dimension."[6] (Dworkin, 1978, 24f).

As an example for his thesis, Dworkin invoked a case -Riggs versus Palmer- that had to be decided by a New York court towards the end of the 19th century. The facts were basically the following: a grandson requested that the court give him possession of his grandfather´s inheritance which, in accordance with New York State inheritance rules, he had the right to. The peculiarity of the case lay in the fact that among that grandsons´ attributes was that of being the decedent´s murderer - a circumstance not mentioned as a reason for exclusion from hereditary succession by the applicable inheritance rules. Thus, in accordance with the applicable rules, that circumstance had to be regarded as irrelevant. The court, however, denied the grandson possession of his grandfather´s inheritance basing themselves on the principle that "no one shall be permitted to [...] take advantage of his own wrongdoing". It can be observed that, on at least two points, the example used by Dworkin to defend his thesis was not quite consistent with this last:

a) According to Dworkin, if a rule is valid, and the facts it stipulates are given, then the application of the rule directly solves the case. However, in Riggs versus Palmer the court did not question the validity of the applicable provisions on inheritance, rather, it held that with respect to the circumstances of the case in question, the principle of Nemine doluus suus prodesse debet should prevail over the principle of "what is established by legal rules has to be";

b) according to Dworkin, principles alone never completely determine the content of a particular decision, whereas in the case in question, it seems that once the court determined the prevalence of the principle which prohibits taking advantage of one´s own crime, that principle became the single and absolute legal ground of the decision.

Whatever the case, Dworkin´s thesis on principles later broadened into the global conception of law to be found in Law's Empire[7], have been among the most significant stimulants of the discussion on legal theory and philosophy in recent years, leaving their mark on such central topics found in these disciplines as the relationship between morality and law, the typology of legal provisions, the characterization of hard cases, judge-made law, the character and structure of the justificatory legal reasoning, etc.

Robert Alexy, accepting the way in which Dworkin characterizes the distinction between rules and principles, has pointed out that one should ask oneself why rules and principles intersect in different ways. According to Alexy, principles are norms which estsablish that something be carried out to the greatest possible degree, in relation to legal and factual possibilities. Principles are, therefore, optimization commands which can be carried out to different degrees and the degree to which they must carried out does not depend only on factual possibilities, but also on legal possibilities. The realm of legal possibilities is determined by principles and rules which play against each other. Rules, in contrast, are norms which demand a complete fulfillment and thus can only be either fulfilled or not.

According to Alexy, this explanation of the distinction between rules and principles is not incompatible with that of Dworkin, rather it goes one step further: the difference between the two types of standards referred to by Alexy would explain the reason for the differences referred to by Dworkin.
II. Meanings of the expression "legal principles" in the language of jurists

It is a fact that legal theorists and jurists have used –and still use- the expression "legal principles" (or "general principles of law") with different meanings, which in their turn, at least partly overlap. Perhaps the most characteristic of these meanings are the following (I am basically considering the analysis of Carrió[8]and Guastini[9]): a) "principle" in the sense of a very general norm, in the sense that it regulates a case whose relevant characteristics are very general: for example, those found in Part II, Fourth Book of Spanish Civil Code, which are applicable to whatever kind of contracts ; b) "principle" in the sense of a norm drawn up in particularly vague terms, as happens with those which include that which jurists call undetermined legal concepts, that is to say, concepts which do not only have an opened textured periphery, but which are, rather, centrally vague: for example, "abuse of a right", "good faith", "due care and attention"...; c) "principle" in the sense of a norm which expresses the superior values of a legal system, or of a part of it, of an institution, etc. For example, section 14 of the Spanish Constitution, which establishes equal protection of the law for Spaniards and prohibits the existence of any discrimination "due to birth, race, sex, religion, belief or any other personal or social condition or circumstance"; d) "principle" in the sense of a policy or programmatic norm, that is, of a norm which stipulates the obligation to seek certain ends such as, for example, section 51 of the Spanish Constitution: "the official authorities will guarantee the defense of consumers and users, protecting their security, health and legitimate economic interests using effective procedures"; e) "principle" in the sense of a norm directed to the law applying bodies and which states, in a general way, how the applicable norm should be selected, interpreted etc., like, for example, the interpretative criteria established in the Spanish Civil Code, section 3.1; f) "principle" in the sense of regula iuris, that is, of a largely general statement or maxim which allows the systematization (or the synthetic presentation) of the legal system or of a part of it. For example, the principle of the rational legislator, or the iura novit curia maxim.
III. Two proposals for classification

The list of meanings above is merely illustrative and does not seek in any way to be comprehensive (Genaro Carrió has distinguished as many as eleven meanings, not seeking either to exhaust all the senses in which jurists speak of "principles") and neither is it exclusive: as the reader will have observed, many of the norms used as examples of a certain sense of "principle", could equally have been used as examples of other senses of the expression. It is, thus, a good idea to make some stipulations which will make it possible to overcome, on one side, the inaccuracies which the use of such an ambiguous term leads to and which include, on the other, the content and the problems to which jurists are centering on when speaking about principles.
III.1 Principles in the strict sense and policies

In relation to the content, the central use of the expression "principles" seems to make reference to the meanings c) –principle in the sense of a norm which expresses the superior values of a certain legal system, a part of it or an institution and d) -principle in the sense of a policy or programmatic norm, of norms which establish that some collective goods must be pursued. It seems reasonable, then, to redefine "principle" so that the distinction between principles in the sense c) –which we will call principles in the strict sense- and d) programmatic norms or policies is made as an exhaustive and exclusive distinction. To make the distinction exhaustive implies that the characteristics a) –high level of generality- and b) -presence of centrally vague terms-, which usually accompany principles in the strict sense and policies, do not in themselves make it possible to qualify a certain standard as a principle; as for characteristics e) and f), the standards which show them can be considered again as principles in the strict sense or as policies if they also possess the features a) and/or b). To make the distinction exclusive implies that, although it is possible for the same statement to be considered in certain argumentative contexts as a principle and in others as a policy (and one could even say that this in itself constitutes a characteristic ambiguity in many principles), the same jurist cannot use it as both things at the same time in a single argumentative context.
III.2 Explicit principles and implicit principles

A second relevant distinction is that which exists between explicit principles, that is, those which particularly derive from a legal source –for example, constitutional principles, principles stated in the Constitution- andimplicit principles, that is to say, principles which don’t derive from such a legal source, but are directly accepted by the Courts by virtue of its content. With regard to this group of principles the question is raised as to whether the admission of their inclusion as elements of law means that the doctrine of the rule of recognition must be abandoned, as Dworkin maintained. In order to answer this question properly one must make a distinction between two groups of these principles. The first group is that made up of those principles which the judiciary has been formulating and developing as rationalizations, in MacCormick’s sense, that is as explanation and justification of a set of rules which are valid by virtue of their pedigree. The legal status of principles of this type do nor pose particular problems for a conception based on the rule of recognition. So, what these principles do is ascribe propositional content, meaning, to rules which are valid by virtue of this pedigree. The second group of principles which must be distinguished in this context is that formed by those principles which are not developed by the judiciary as explanation and justification of rules, but which are directly accepted as binding by the judiciary by virtue of its content and operate as standards when deciding on the validity of norms which pass the tests of pedigree. According to Dworkin, to admit the presence of these principles as elements of law, means that the doctrine of the rule of recognition must be abandoned, so in his opinion, at this level of principles, the clear distinction between acceptance (of the rule of recognition) and validity (of the other legal standards according to the rule of recognition) could not be maintained. However, according to Hart´s last work –the Postcript to The Concept of Law- and according to the trend which is usually known as inclusive positivism, the doctrine of the rule of recognition would be perfectly adequate in order to explain these principles, as there is no reason why the rule of recognition cannot identify certain principles by virtue of their content, and, thus, consider them as elements of the ultimate criteria of legal validity.
IV. The distinction between principles and rules

The distinction between principles and rules can be dealt with by taking different approaches to the norms as a starting point. Here, we are only going to use the approach we could call structural, since it consists in seeing norms as entities which are organized in a certain way: as conditional statements which correlate generic cases (sets of features) with solutions (that is, with the normative qualification of certain conduct). From this perspective, it seems that the distinction between rules and principles (and, within these last, between principles in the strict sense and programmatic norms) can be formulated in the following way: rules shape the generic case as well as the deontically qualified conduct in the solution in a closed way; principles in the strict sense shape their generic case in an open way and the deontically qualified conduct in a closed way; programmatic norms or policies shape both elements in an open way. Let us look at this with some examples.

As an example we can use section 28 of the Spanish Workers Statute, which states "the employer is obliged to pay an equal salary for the rendering of the same work, for the basic salary as well as for the supplementary payments, without any discrimination on grounds of sex". Here, both the generic case (being an employer, having an employment relationship with other people as a result of this position) and the deontically qualified conduct: it is forbidden to pay a different salary for the same work to workers of different sexes, are generically determined (that is to say, shaped in a closed way). Naturally, all generic determination can cause problems when subsuming: doubts can, for example, exist about whether a certain activity is "work" or not, or about whether a supplementary payment for different clothing on account of a person´s sex constitutes or does not constitute conduct which is not in accordance with that stipulated in the norm of reference. However, what matters is that here both the case and the deontically qualified conduct are generically determined.

Things change if we pass from rules to principles in the strict sense. Here let us use section 14 of the Spanish Constitution, to which we earlier made reference, as an example. This section, which is aimed at guiding the conduct of legal bodies, could be reworded in the following way: "if x is a legal body and x has to issue a norm, enforce it, etc. and another principle which, in relation to the case has greater validity, is not concurrent, then the said body is prohibited from establishing or causing any discrimination whatsoever on account of race, sex, religion, belief or any other personal or social circumstance to exist". The difference between this last section and section 28 of the Statute of Worker´s Rights lies in the fact that in section 14 of the Constitution the assumption is not generically determined (that is to say, it is shaped in an open way) in the sense that both provisions resemble each other in the way that they shape the deontically qualified conduct; in both cases what is prohibited is generically determined: paying a different salary, discriminating.

Now, let us look at programmatic norms or policies. Section 51 of the Spanish Constitution, which we have already used as an example, can also be seen as a conditional statement, whose antecedent has an open shape similar to that of section 14. The difference, however, lies in the fact that, in the case of section 51, a generically determined model of conduct is not found in the consequent, rather what is found is an objective (the protection of security, health and consumer and user´s legitimate economic interests) which it is possible to achieve to a greater or lesser extent through forms of conduct ("effective procedures") of many different types.

If the above is correct, then Alexy´s claim that principles are optimization commands which establish that something be done to the grater possible degree would mean slightly different things depending on whether it refers to principles in the strict sense or to policies: in the first, ‘to the greatest possible degree’ would mean ‘in the greatest possible number of cases’; and in the second, ‘to the greatest possible degree’ would mean ‘with the greater possible intensity’.
V. The interrelation between rules and principles in the reasoning of judicial bodies. Easy cases and hard cases

It is common to state that principles only come into play in the reasoning of judicial bodies when these last have to deal with hard cases, whereas the rules are necessary and sufficient elements to justify the decision in easy cases. This way of seeing things only appears to be acceptable if one takes into account that principles are involved in the very qualification of whether a case is easy or hard. A case is easy precisely when the subsumption of certain facts in a certain rule is not controversial in the light of the system of principles which give meaning to the institution or normative sphere in question. And "they give meaning", in its turn, can have a double meaning: we can be dealing with those values whose carrying out is assured by the following of the rule (principles in the strict sense), or with the social goals for whose attainment the following of the rule acts as a means (policies or programmatic norms). However, in one or other of the senses of "to give meaning", it is by looking in the light of explicit or implicit principles in the normative sphere in question that one can determine whether a case is easy or hard.

The above implies that rule following cannot be considered the central aspect of the judicial bodies´ legally guided conduct, in the sense that deliberation on principles is peripheral or marginal. So, if the decision of whether a case is possible to subsume in a certain rule to be followed in order to solve it can only be made by taking principles into account, then, this implies that rule following demands a previous deliberation (even if often unconscious) about principles and it only exists legitimately in the field defined by this last.
Bibliography

Alexy, Robert: Theorie der Grundrechte, Frankfurt: Suhrkamp, 1996, 3th ed.

Alexy, Robert: “Zum Begriff des Rechtsprinzips”, in Id: Recht, Vernunft, Diskurs, Frankfurt: Suhrkamp, 1995.

Carrió, Genaro R.: “Principios jurídicos y positivismo jurídico”, in Notas sobre Derecho y lenguaje, Buenos Aires: Abeledo Perrrot, 3th ed., 1986.

Dworkin, Ronald: Taking Rights Seriously, London: Duckworth, 1978.

Hart, Herbert L. A. : Postscript to The Concept of Law, 2nd ed., ed. by P. Bullock and J. Raz, Oxford: Clarendon Press, 1994.
Footnotes

[1] Joseph Esser: Grundsatz und Norm in der richterlichen Forbildung des Privatrechts, J.C.B. Mohr, Tübingen: J.C.B. Mohr, 1956.

[2] Giorgio del Vecchio: “Sui principi generali del diritto”, in Studi sul diritto, vol I, Milano, 1958.

[3] Norberto Bobbio: “Principi generali di diritto”, in Novissimo Digesto Italiano, XIII, Torino, 1966.

[4] In the University of Chicago Law Review.

[5] Ronald Dworkin: Taking Rights Seriously, London: Duckworth, 1978.

[6] Op. cit., 24 ff.

[7] Ronald Dworkin: Law’s Empire,London: Fontana Press, 1986.

[8] Genaro R. Carrió: “Principios jurídicos y positivismo jurídico”, in Notas sobre Derecho y lenguaje, Buenos Aires: Abeledo Perrrot, 3th ed., 1986.

[9] Riccardo Guastini: “Principi di diritto”, in Dalle fonti alle norme, Torino: Giappichelli, 1990.