The Relationship between Law and Values
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Partly because of its dogmatic legal dimension, the principle-focused approach is sensitive to the legal aspect of those principles. Two points can be touched upon. The first is that those principles which grant the best interpretation of the relevant legal materials form part of the law. This is, of course, an idealistic description in reality; one probably recognizes a gradual evolution of different principles from a soft law character to ‘harder’ law. The second is that these principles are related to the legal materials, which brings its own specific normative force. In relation to this, it is useful to recall the interesting observation made by Koopmans regarding the general principles of law in European and national systems of law in general, that they are, in a certain sense, commuters. Frequently, they travel from national legal systems to European Union law, as principles common to the legal systems of the Member States. Subsequently, after having been baptized as general principles of Union law, they travel back to national systems as part of the influence of Union law on national law.29
He also concludes: general principles are not, or not any more, used to patch gaps left between legal provisions duly enacted by the framers of laws, constitutions or treaties. On the contrary, they are an integral part of the conceptual tools judges employ nowadays for settling conflicts.30
This development corresponds, in Koopmans’ view, with a broader evolution in which growing reliance on general principles of law is part of the answer to the question of the increasing inadequacy of more traditional sources of law. These include the usual codes, statutes, and regulations in light of technological progress, rapid processes of social change, and the globalization of the economy. The principles of good governance, as expressed in these several conceptions, form an interpretation of the rules expressed in the legal materials. So, as Dworkin argues, they are related to these rules in two ways. On the one hand, they fit coherently with the rules, on the other hand, the principles—as an expression of the point of good governance—exert an influence on these rules themselves, as Dworkin makes clear in relation to an imaginary example of the rules of courtesy: that the requirements of courtesy—the behaviour it calls for or judgments it warrants—are not necessarily or exclusively what they have always been taken to be but are instead sensitive to its point, so that the strict rules must be understood or applied or extended or modified or qualified or limited by that point.31
As a special case, we can think of the situation where a principle that has implicitly been part of the law is at a certain moment codified in a piece of legislation, as is the case with some general principles of good administration in administrative law. In this section, the principles of good governance have a function in line with the third group of principles according to Dworkin. The principles provide internal fundamental basics for the administration. Multilevel developments shape this underlying basis.
3. The Relationship between Law and Values The literature elaborates that the relationship between law and political and moral values is often characterized as a complex topic.32 The first is reductive, in the sense 29 32
Koopmans 2000, 25. Cane 2002, 5.
30
Ibid, 34.
31
Dworkin 1986, 47.
