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An Approach to Legal Principles Based on Their Justifying Function

Published online by Cambridge University Press:  20 August 2019

Juan B. Etcheverry
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Abstract

This paper intends to throw light upon some aspects of the debate on the characterization of legal principles and on their differences when compared to rules. Particularly, this analysis proposes differentiating principles from rules by considering the functions they perform in law instead of their structural differences. To achieve this, we distinguish between the functions of guidance and justification that legal principles fulfill. From that distinction, we observe that the attempt to characterize legal principles based on the way in which they guide conduct does not seem to be the most appropriate either. In contrast, this paper tries to show that all the different types of precepts known as principles perform a justifying function in legal reasoning.

Keywords

legal principlesrulesfundamental rightsjustifying functionguidance function
Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 32 , Issue 2 , August 2019 , pp. 321 - 342
Copyright
© Canadian Journal of Law & Jurisprudence 2019 

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Footnotes

This paper is part of the results of the research project “Coordination and Authority of Law. Practical and Theoretical Challenges in a Morally Fragmented Society”, sponsored by the Argentine Ministry of Science, Technology and Productive Innovation and Universidad Austral (PICTO-AUSTRAL 2016-0095). The author is indebted to P. Zambrano, Juan Cianciardo, P. Rivas, Federico De Fazio, Juan Pablo Alonso and Verónica Rodriguez-Blanco for helpful discussions and criticisms.

References

1 Alexy, Robert, A Theory of Fundamental Rights, translated by Rivers, Juan (Oxford University Press, 2002) at 46-47Google Scholar [Alexy, Fundamental Rights]; F De Fazio, “La teoría de los principios. Un estado de la cuestión” (2018) [unpublished] at 2.

2 Roscoe Pound, Jurisprudence, vol II (West, 1959) at 124.

3 We ought to clarify that the explanation provided by Carrió of legal principles differs from the one given by Alexy. Carrió’s proposal, in opposition to Alexy’s, may be considered to be “weak”. Instead of affirming that there are logic or structural elements that enable the identification of legal principles, Carrió acknowledges different meanings of “legal principle” and notices that in certain cases these different meanings may overlap with each other. More specifically, he states that “in legal contexts, the word ‘principle’ is used in many different ways that mirror such meanings and form a complex family united by intricate relations”. See Genaro R Carrió, “Legal Principles and Legal Positivism” in J García et al, eds, Philosophical Analysis en Latin America (Springer, 1984); Notas sobre Derecho y Lenguaje (Notes on Law and Language), 5th ed (LexisNexis & Abeledo Perrot, 2006) at 210. There are more recent works on the different meanings of the term “principle”, namely: Riccardo Guastini, Das Fontes Às Normas, translated by E Bini (Quartir Latin, 2005) at 185; Manuel Atienza & J Ruiz Manero, A Theory of Legal Sentences (Springer, 1998) at 1-5; Aulis Aarnio, “Reglas y principios en el razonamiento jurídico” (2000) 4 Anuario da Facultade de Dereito da Universidade da Coruña 593 at 595-96.

4 On the different origin and theoretical assumptions of legal principles and the general principles of law see P Serna, Jurisprudencia de principios. Una aproximación realista (1993) [unpublished] at chapter I [Serna, Jurisrpudencia].

5 Riggs v Palmer, 115 NY 506 (CA 1989) [Riggs v Palmer].

6 Constitution of the Argentine Nation, adopted 30 April 1853 and amended 22 August 1994 at chapter 1.

7 Ibid.

8 Aarnio, supra note 3 at 596.

9 CQLR c CCQ-1991.

10 US Const amend VIII.

11 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.

12 [Germany], 23 May 1949.

13 See Lon Fuller, The Morality of Law (Yale University Press, 1969).

14 Adopted 6 October 2014, in force since 31 July 2015.

15 RSC 1985, c C-46.

16 Alexy, Robert, El concepto y la validez del derecho, translated by Seña, JM (Gedisa, 1997) at 162Google Scholar [Alexy, El concepto]. More recently, Alexy explains that the application of any legal precept, including principles, initially implies a subsumption. Then, if the precepts under application are principles, weighting will be necessary. After that, the case needs to be subsumed again within the rule that results from the weighting of principles. See Robert Alexy, “Two or Three?” in Martin Borowski, ed, Archiv für Rechts- und Sozialphilosophie: On the Nature of Legal Principles, 119 Beiheft (Nomos, 2010) 18. As we shall see, applying a rule entails determining previously whether that rule is valid, amongst other criteria, according to legal principles. Furthermore, in many cases, the scope of a rule is also established in accordance with principles.

17 Alexy, El concepto, supra note 16 at 162-63.

18 Dworkin popularized the case in which judges have resolved basing themselves on this precept, even against what a rule established. See Riggs v Palmer, supra note 5.

19 Atienza & Manero, supra note 3 at 11. However, we do not share these authors’ proposal to characterize principles, as they suggest that principles have a structure composed of openly-configured conditions for its application (among other elements). Next, we will support that the difference between rules and principles, as far as the conditions for their application are concerned, seems to be a matter of grade and that even some precepts usually identified as principles may have conditions for their application which are more closed than those of other precepts usually categorized as rules.

20 Robert Alexy, Tres escritos sobre derechos fundamentales y la teoría de los principios, translated by Carlos Bernal Pulido (Universidad Externado de Colombia, 2003) at 120.

21 Several authors state that the distinction between principles and rules is gradual, rather than structural. For instance, Alfonso Garcia Figueroa, Principios y positivismo jurídico (Centro de Estudios Políticos y Constitucionales, 1998) at 198.

22 Some authors have even observed that linking the notion of “principle” to that of “optimization” minimizes the distinction between principles and rules, as what is “optimizable” does not admit gradual compliance: the regulation subject to optimization is either optimized or not. See Jan-R Sieckmann, “Principles as normative arguments” in Christian Dahlman & Werner Krawietz, eds, Rechtstheorie: Values, Rights, and Duties in Legal and Philosophical Discourse, 21st Beiheft (Duncker & Humblot, 2005) at 197 [Sieckmann, “Principles”]. Alexy answers this objection in Robert Alexy, “On the Structure of Legal Principles” (2000) 13:3 Ratio Juris 294 at 300 [Alexy, “Structure”].

23 Alexy explains his proposal by suggesting that the same precept (such as the one that establishes that “the dignity of the human person is inviolable”) can be partly treated as a rule and party considered as a principle. The relationship of the preference for the principle of human dignity before other opposite principles decides the content of the rule of human dignity. What is absolute is not the principle, but the rule…. Alexy, Fundamental Rights, supra note 1 at 61-65.

24 Peczenik, for instance, states that in difficult cases rules are applied through weighting. Cf Aleksander Peczenik, On Law and Reason (Kluwer, 1989) at 74.

25 Alexy himself acknowledges that rules are not characterized by the all-or-nothing way in which they are applied. However, he understands that this does not affect the argument that states that principles have a dimension of weight while rules do not, and that the dimension of weight is noticed in the different manner in which principles and rules collide. Robert Alexy, “Sistema jurídico, principios jurídicos y razón práctica” (1988) 5 Doxa at 141.

26 Alexy, “Structure”, supra note 22 at 296-97.

27 Jan-R Sieckmann, “El concepto de los principios” in La teoría de Robert Alexy: Análisis y crítica (Universidad Externado de Colombia, 2014) 173 at 173.

28 Alexy, Fundamental Rights, supra note 1 at 61.

29 Ibid at 46.

30 When explaining the different types of reasons included in principles (prima facie) and in rules (definite), Alexy acknowledges that, in fact, rules may also offer prima facie reasons. However, he considers that the prima facie reasons of these rules are stronger than the prima facie reasons of principles. If a rule is valid, applicable and has no exceptions, whoever wishes to introduce an exception not only has the argumentative duty of demonstrating that their solution is better than the one expressed in the rule, but also must show that it is sufficiently better in order to justify moving away from what has been established by the authorities. This would be so because there are “formal principles” stipulating it this way. Cf Alexy, Fundamental Rights, supra note 1 at 58. Since both rules and principles may offer prima facie reasons, the difference between principles and rules regarding the type reasons that they include seems to be a matter of degree. Furthermore, as it has been already pointed out, there are precepts usually denominated as principles that seem to include reasons that are more definite than those contained in most rules. Finally, it seems like the existence and—undoubtedly—the intensity of the so-called formal principles is a contingent matter.

31 With this distinction, Finnis actually decides to point out how the language of fundamental rights reflects the different guiding force which is expected from them. See John Finnis, Natural Law and Natural Rights, 2nd ed (Oxford University Press, 2011) at 210-11.

32 Sieckmann searches for what distinguishes principles between the normative formulations that say nothing about the validity of their obligatory nature and those that confirm the definite validity of their commands. Sieckmann, “Principles”, supra note 22 at 198. Unlike that, this paper seeks to demonstrate that there are rules that do not aspire to affirm they are definitively valid, and that there are principles that seem to confirm a validity which is more definite than that of most rules.

33 Supra note 12.

34 American Convention on Human Rights “Pact of San Jose, Costa Rica”, 1144 UNTS 123 (entered into force 18 July 1978).

35 Juan Ruiz Manero, “Rule of Law y ponderación. Un límite de la ponderación y una insuficiencia de su teoría estándar” (Paper delivered at the University of Buenos Aires, 12 April 2016) [unpublished, archived online at http://www.derecho.uba.ar/institucional/deinteres/2016-ruiz-manero-rule-of-law-y-ponderacion.pdf] at 17.

36 Finnis, supra note 31 at 218-19.

37 CE (Spanish Constitution).

38 Labor Contract Law, Law No. 20.744 promulgated by Decree 390/1976 of 13 May 1976.

39 Ruling of the National Chamber of Civil Appeals of Argentina, Courtroom H, decided on 16 December 2002 on “Fundación Mujeres en Igualdad y otro c/Freddo SA s/amparo”.

40 Supra note 12.

41 BverfF, 1BvR 357/05, párr. 130. The text was consulted on 1 September 2016 at http://www.bverfg.de/entscheidungen/rs20060215_1bvr035705.html.

42 Finnis, supra note 31 at 212.

43 Cf Serna, Jurisprudencia, supra note 4 at 44. Alexy expressly notices that principles may be reasons for rules, as well as reasons for specific judgments of what ought to be. See Alexy, Fundamental Rights, supra note 1 at 59.

44 It is true that Alexy observes that there is a connection between the level of rules and the level of principles. Particularly, he states that since solving conflicts between principles entails creating a rule that prioritizes one principle over the other in certain circumstances, principles are necessary reasons for rules. Alexy, “Structure”, supra note 22 at 297. Further, he reaffirms this idea when stating that principles usually include the reasons that support rules, which implies that rules and principles are “intrinsically connected”. Alexy, “Two or Three?”, supra note 16 at 14. Nonetheless, as previously stated, Alexy has focused on the different structure of these kinds of precepts, instead of concentrating on the different role that they play in justifying legal reasoning.

45 Pound, supra note 2 at 124. Similarly, Finnis speaks about the principles of practical reason as ultimate values that can provide the starting point to consider what to do, guiding our practical reason with a indefinite number of premises and more specific practical principles. See Finnis, “Natural Law”, supra note 31 at 63-64 and n III.3.

46 Though rules are also premises of legal reasoning, as we shall see ahead (infra IV.2.b), they need principles to be understood and justified. This is why it is said that principles stand “before” or “at the beginning” of legal reasoning.

47 HLA Hart, The Concept of Law, 2nd ed (Clarendon Press, 1994) at 260.

48 It is necessary to acknowledge that there is a type of principle that we have denominated “principles with conclusive strength” (PCS) that is usually quite precise. This type of principle usually contains prohibitions that admit no arguments or reasons against them. For instance, Section 18 of the Argentine Constitution establishes that “Nobody may be compelled to testify against himself”. Even though this type of principle does not acquire its special capacity of justification from its capacity to regulate an ample variety of situations that may otherwise be not provided by law, it does, instead, by ensuring some minimum or nuclear demands which derive from other principles. In this way, they reveal the reasons that prevent us from admitting other reasons or arguments against them.

49 Timothy AO Endicott, Vagueness in Law (Oxford University Press, 2003) at 190. Alexy suggests a system of rules, principles, and procedures. See Alexy, El concepto, supra note 16 at 172.

50 Timothy AO Endicott, “Law is Necessarily Vague” (2001) 7:4 Legal Theory 379 at 380 [Endicott, “Necessarily Vague”].

51 In one of its rulings, the Argentine Supreme Court admitted an exception to such age limit by taking into account the particular circumstances of the case. The Supreme Court mainly considered that: i) the minor who requested the judge’s authorization to donate was only a couple of months away from her eighteenth birthday; ii) the organ recipient’s life was in grave danger, and couldn’t wait for the donor to turn eighteen; and iii) the donor showed the court her capacity to decide to donate. Saguir y Dib, Fallos 302:1284 (1980).

52 This generates what Schauer calls “recalcitrant experiences”. Cf Frederick Schauer, Playing by the Rules (Clarendon Press, 1991) at 31-34, 39. Endicott calls this “arbitrariness”. See Endicott, “Necessarily Vague”, supra note 50 at 379-80.

53 Serna, supra note 4 at 44.

54 Ronald Dworkin, Taking Rights Seriously (Harvard University Press, 1978) at 22 [Dworkin, Taking Rights].

55 Neil MacCormick, Legal Reasoning and Legal Theory (Clarendon Press, 1997) at 152.

56 CS Nino, “La paradoja de la irrelevancia moral del gobierno y el valor epistemológico de la democracia” in R Vigo (coord.), En torno a la democracia (Rubinzal-Culzoni, 1990) at 97.

57 Alexy, Robert, A Theory of Legal Argumentation, translated by Adler, Ruth & MacCormick, Neil (Oxford, University Press, 1989) at 212-20Google Scholar.

58 Carlos Santiago Nino, La Constitución de la democracia deliberativa (Gedisa, 2012) at 44.

59 We understand that the explanation provided by Rodriguez-Blanco of the actions of law-making, judicial ruling or complying with the law as intentional actions that realize the capacity of practical reasoning of those who make those decisions is compatible with the vision suggested in this section of the paper about the relationship between rules and principles as part of a continuous process of legal determination. For Rodriguez-Blanco, an intentional action is a series of actions directed towards an ultimate goal of the action which is perceived as attractive, convenient and, therefore, possessing the characteristics of something good or desirable to carry out—good-making characteristics. This goal throws light upon this series of actions and makes it intelligible. Thus, the intentional action is unified by the final intention operating as a reason to act, which may be offered to others as a justification. From these ideas, Rodriguez-Blanco affirms that if our intentional actions are realized by an order of reasons which are ultimately based on something deemed valuable, then lawmakers and judges need to conceive this order of reasons as convenient and capable of justifying their rules, directives, and decisions. Cf Veronica Rodriguez-Blanco, Law and Authority Under the Guise of the Good (Hart, 2014) at 35, 45, 58, 71.

60 On the one hand, the idea according to which rules have limited autonomy because in order to understand and justify them we must do it in light of principles can be found in Dworkin’s work. On this regard, he supports that the application of a legal standard entails asking oneself “which interpretation, of the different interpretations admitted by the abstract meaning of the term, best advances the set of principles and policies that provides the best political justification for the statute at the time it was passed”. Cf Ronald Dworkin, “Is there Really No Right Answer in Hard Cases” in A Matter of Principle (Harvard University Press, 1986) at 129. This idea was treated in Dworkin, Taking Rights, supra note 54 at 81, 107-10 and expressed in Ronald Dworkin, Law´s Empire (Harvard University Press, 1986) at 65-68. Atienza and Ruiz Manero state that principles fulfill an explanatory function of law in two ways: i) they allow to synthesize a large amount of information; and ii) they allow to understand the law as a set of guidelines endowed with meaning. See Atienza & Manero, supra note 3 at 20. On the other hand, Dworkin employs a double distinction that can be useful for the purposes of this work. He distinguishes background rights from institutional rights and abstract rights from concrete rights. From this last distinction, he concludes that abstract rights offer arguments for concrete rights, but the claims regarding concrete rights are more definite than those that can be made about abstract rights. Cf Dworkin, Taking Rights, supra note 54 at 90-93. Further on, Dworkin will state that the principles regarding dignity express very abstract rights and that all rights derive from them. This implies saying that all rights result from asking ourselves what does equality of consideration and respect demand. Cf Ronald Dworkin, Justice for Hedgehogs (Harvard University Press, 2011) at 330.

61 Juan B Etcheverry, “La relevancia del derecho que remite a la moral” (2010) 4 Problema at 233-34 and Juan B Etcheverry, “La relevancia de la determinación judicial y la tesis de la respuesta más justa” (2015) 24 Dikaion at 66-85.

62 The idea that the legal practice is a chain process has been popularized by Dworkin, who compared this phenomenon with a novel written by successive authors. In this regard see Dworkin, Law’s Empire, supra note 60 at 228.

63 Finnis, Natural Law, supra note 31 at 63-64 and n III.3.

64 Sieckmann considers that principles are unrestrictedly iterated demands of validity. Cf Sieckmann, “Principles”, supra note 22 at 198. This idea seems to be compatible with the one that states that there are several levels of justification of a legal decision. However, we understand that the only way in which law can finally justify its obligatory nature is by appealing to some ultimate moral principles, which are valid by their own merit and not justifiable by other principles. Dworkin considers that the principle of dignity (which demands that all the members of a community must be treated with the same consideration and respect) is the most abstract of all and, therefore, the rest of the principles are derived from it. However, he believes that this is an interpretative concept, which implies that its understanding demands justification which recognizes no limit (except for exhaustion, lack of time or lack of imagination), as he expressly notices that there is no fundamental governing principle that is true per se. Dworkin, Justice for Hedgehogs, supra note 60 at 116-17.