2. Dworkin and Hart

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 Hart 1961, 144. 9 Austin 1995; Austin 2007. 10 Hart 1961, 83–4; Soeteman 1992a; Van Oenen 1994. 11 Edlin 2007, 235. 12 Minns 2007.

Legal positivism does not, and indeed need not deny that legal practice has, or at last can have, a moral ‘point’. What it does deny is that law cannot be described without reference to such a moral point or purpose. Dworkin however argues that the positivist framework, even when modified or ‘stretched’, is flawed because it cannot account for all moral principles that figure in legal practice and adjudication. The part some moral principles play in law can only be accounted for within the hermeneutical perspective that Hart’s theory lacks.

Dworkin argues that Hart wrongly reduces the hermeneutical dimension of law to a sociological description of official behaviour. This does injustice to the self-image or self-conception of lawyers. Participants in a social practice, like law, always view their practice from an internal perspective.

For Dworkin, reasoning about the correct solution always involves imposing a moral ‘point’ on law. This ‘point’ functions as the focus of a construction that tries to give as much coherence as possible to applicable and related legal norms. From this perspective, moral principles that play a role in the argument for the decision should be considered as part of the law itself.13

(a) Hart’s concept of law and the theory of Dworkin In Hart’s concept of law, two types of principles can still be found in relation to the discretion of the judiciary, principles that are part of positive law and principles as accepted by the judiciary in a plausible interpretation of a series of cases.14 Dworkin, however, finds a third group of principles as essential, namely the principles which are part of an implicit, unconscious background latent in the legal system. His interpretive approach is built on ideals of fairness, justice, and integrity. From his perspective the model must aim at a coherent construction of the legal system. This ultimate coherence justifies the adhered principles. Ultimately, one right answer to a case can be applied throughout the whole system, if it is really a coherent system.15 This is also applicable when competing principles are to be weighed.

(b) Linking to administrative law The administrative law literature already links this theory of Dworkin with its perceptions on proper administration.16 In Dworkin’s work, special attention is drawn to differences between principles and rules, and principles and policies.17 The latter may need a short explanation. Policies describe goals, whereas principles resemble rights and form ‘a threshold weight against community goals’.18

Van der Heijden has elaborated a method to find answers to questions of administrative law.19 He assesses about fifteen principles in a case in order to support the concept of fairness and justice. In the same case, he proves how application of the principles of fair administration is possible in combination with criteria of effectiveness and efficiency. He concludes:

Characteristic for the found method for finding answers to questions of administrative law is that it is not only applicable in cases where judges have to rule. The method is also useful for policy analysis, ex ante and ex post, and in the situation of making and conducting policy.

13 Van Oenen 1994, 259. 14 Hart 1961, 144. 15 Wacks 2008, 40–1. 16 De Waard, 1987, sees a relationship between legal principles and procedural administrative law; Nicolai, 1990, makes a link between legal principles and the process of the steps of decision-making by the administration; Addink 1999, ch 2: Foundations of the Principles of Proper Administration; Van der Heijden, 2001, develops a broader theory of legal philosophy with regard to proper administrations; Popelier, 2000, makes a link with the Principles of Proper Law Making. See also Van der Vlies 1984. 17 Wacks 2008, 45–8. 18 Ibid. 19 Van der Heijden 2001, 273.

Especially in this last situation the principles of fair administration are instrumental, because they have direct influence on changes in the real world. This instrumental character of these principles has to fit in the system of administrative law that traditionally recognizes these principles as juridical guarantees instead of instruments. This is done by defining instrumentality as a function of giving guarantees, and judicial guarantees as instruments. That results in a system that in accordance with the ideas of Dworkin can lead to answers to questions of law that are acknowledged in the concerned community as the answers that give the best possible interpretation of politics and law in this community.20

(c) Good governance in this system? How does good governance function in this system? As already noted, Curtin and Dekker have found good governance21 to be an interpretive legal concept.22 This is in line with Dworkin23 as well as Werner, who proposes the same in relation to the concept of state sovereignty.24 The principles of good governance fit harmoniously within this scheme of thought. As Curtin and Dekker state:

According to Dworkin [an ‘interpretive’ legal concept] plays an important role in the legal discourse in a community by structuring different conceptions around a common fundamental value and thus contributing to the development of the legal system of that community. These different conceptions are, to a large extent, expressed in the principles connected with the ‘interpretive’ legal concept.25,26

There are three dimensions to this. Different conceptions of good governance are expressed in different sets of principles of good governance, which in their turn form an interpretation of the relevant practices and legal materials.

As stated at the beginning of this section, good governance is perceived to be the central point of focus for both national and international administrative law.27 This has an important consequence. It means that, since international administrative law is made up of administrative law at the different levels and areas of the global legal order, the legal materials which are relevant here comprise different parts of this whole global legal order.28 This is in contrast with the wide range of different conceptions of good governance, as expressed by various institutions, such as the IMF and the European Commission. Besides this obvious divergence there is a range of similarities and parallels. International and comparative administrative scholarship should reveal such convergences.

The principles of good governance as presented in this book follow this paradox. Curtin and Dekker explain that concrete principles resemble different conceptions of good governance. This is perhaps a strong characteristic of good governance being an interpretative legal concept. In different circumstances, good governance may require different approaches. Convergence is then relevant, as different conceptions of good governance revolve around a common core—and there is probably considerable overlap.

20 Ibid, 275. 21 In the article, there is a difference in terminology: ‘Governance’ or ‘Good Governance’, but not in the method which is used. My impression is that they see these as organizational norms, however, I see them as norms for governmental actions. 22 Curtin and Dekker 2005, 3–20. 23 Soeteman 1992b, 170ff. 24 Werner 2002; see the article by Curtin and Dekker, 2005, and the one by Werner for a detailed exposition of this perspective. 25 Curtin and Dekker 2005, 3–20. 26 Rawls 1999, 5. 27 Kingsbury, Krisch, and Stewart 2005. 28 Esty 2006b.