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The Theoretical Perspective
Unfortunately, principles are not as self-evident as they may seem. Some scholars prefer to work strictly with concrete positive law while others insert somewhat abstract elements in the form of principles and individual rights and liberties. For that reason, we address this contrast, but only briefly. It should be kept in mind that these abstract elements have their own meaning in the dynamics of the judiciary, the legislator, and the executive,6 as well as in the dynamics of national, European, and international law.7 The first step is Dworkin’s position in his discussions with Hart. The second step is a comparison of the ideas of Dworkin and Alexy. From here, a direct link is made with the principles of good governance and the principles of proper administration. The last aspect is the double comparative approach as elaborated here: horizontal (between the countries) and vertical (between the countries and regional and international organizations).
2. Dworkin and Hart Hart, together with Bentham and Austin, the founding fathers of the legal positivism,8 has criticized Austin9 for describing law solely in terms of behavioural regularity and obedience based on habits and a fear of sanctions.10 In Hart’s opinion, the positive legal framework has three defects, of which uncertainty is the first. This uncertainty is repaired by a rule of recognition. This rule of recognition refers to the acceptance of a fundamental rule by the community as a whole that assigns to particular people or groups the authority to make law. In the civil tradition, a constitution is the obvious example. What about the common law tradition, the tradition of Hart himself? In such traditions, the rule of recognition is ‘a consensus among the senior officials of all branches of government’11 and by the rule of ‘stare decisis’.12 Van Oenen succinctly described the crucial aspects of the discussion between Hart and Austin in his summary: Hart improved Austin’s conception by introducing the concept of a ‘rule’, which incorporates both an (Austinian) aspect of ‘regularity’ or ‘measure’, and a normative or ‘internal aspect’. He described law as a system of (primary and secondary) rules with an internal aspect: legal subjects, or at least juridical officials, do not just ‘follow’ rules, they also view their rules as norms for their own and each other’s behaviour. In this way, Hart added a modest ‘hermeneutical’ dimension to the positivist theory of law; the description of law acquires an element of interpretation, evaluation or reflection. But the moral content of legal rules or norms plays no role in this theory, the reason being the empirical fact that concrete systems of law differ strongly on this count (except for the ‘minimum content of natural law’, of course). Therefore, moral content cannot form part of the concept of law. Moral and legal rules are distinguished by means of secondary rules, procedural rules of recognition without a necessary moral content. [ . . . ]
6 The study by Dworkin—taking the internal participant’s point of view (Dworkin 1977, 14)— centres on judges, but the same remarks can be made concerning legislators and other public officials. Another argument for this choice can also be found in Dworkin 1977, at 15. But the structure of judicial argument is typically more explicit, and judicial reasoning has an influence on other forms of legal discourse that are not fully reciprocal. 7 Dworkin especially makes the horizontal comparison: see the Elmer Case (Dworkin 1977, 15) and the McLoughlin Case (Dworkin 1977, 23); the Snail Darter Case (Dworkin 1977, 20) can be seen as an example of a vertical comparison. 8 9 Hart 1961, 144. Austin 1995; Austin 2007. 10 11 Hart 1961, 83–4; Soeteman 1992a; Van Oenen 1994. Edlin 2007, 235. 12 Minns 2007.
