The Nature of Principles in the Legal Theory
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Another opinion is that political theory or the theory of the state do not ignore these values and, as a result, this theory has influenced the interpretation of these values positively. Craig elaborates upon several topics which are examples of these values. These are: the nature and object of public law, three theories (red, green, and amber), the nature and object of public law, changing boundaries of state action, central concepts in public law, sovereignty, the rule of law, the separation of powers, doctrinal issues, the vertical dimension, and doctrinal issues with a horizontal dimension. The conclusion is that law is, to a certain extent, dependent on political theory. So public law, political theory, and political science interact, which is actually accepted in the Dworkian theory of adjudication as well as in the positivistic line of, for example, Raz.41 For Raz, legal positivism means that there is no conceptual relationship between law and morality. His theory of norms refers to rules that serve as a guide for human behaviour in a legal system. His focus is on the authority law, as well as people under a particular system and the authority that society should acknowledge as due to the law. These questions are relevant for law and society as they affect the daily lives of individuals.
4. The Nature of Principles in the Legal Theory In the article ‘Good Governance: A Norm for the Administration or a Citizen’s Right?’,42 the question was whether good governance refers to principles, rights, or values in the context of the legal developments at the European level. The article showed that codes of good administration have been developed by both the European Union and the Council of Europe. Several principles of good governance have been codified and these principles are recognized in the case law of both courts. In the Lisbon Charter, good governance was established as a citizen’s right. Recently, the ECtHR reiterated the importance of good governance.43
(a) Theory of constitutional rights In his book, Theory of Constitutional Rights, Alexy develops a comprehensive conception of constitutional rights.44 His central thesis is that constitutional rights are optimization requirements and therefore need to be balanced. He explains this as follows:45 The definition of principles as optimization requirements leads straightaway to a necessary connection between principles and proportionality. The principle of proportionality (Verhältnismä ßigkeitsgrundsatz), which in the last decades has received ever greater international recognition in the theory and practice of constitutional review, consists of three sub-principles: the principles of suitability, of necessity, and of proportionality in the narrower sense. All three sub-principles express the idea of optimization. Principles qua optimization requirements require optimization relative both to what is factually possible and to what is legally possible.
What can his ideas contribute to the concept of good governance? First, many courts are developing an enormous amount of jurisprudence engaging in constitutional rights reasoning and in some theoretical material from legal scholars. Unfortunately, not much has been written on good governance yet, but some liberal 41 43 45
42 Raz 2003; Raz 2009. Addink 2008. ECHR 2 October 2012, 5744/05 (Czaja v Poland). Alexy 2016, 65.
44
Alexy 2002.
