3. The Relationship between Law and Values

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 Koopmans 2000, 25. 30 Ibid, 34. 31 Dworkin 1986, 47. 32 Cane 2002, 5.

that it adheres to positive law which is as such strictly separated from morality and allegedly free of ideology.33 The second finds that they are inextricably connected with each other.34

(a) Two lines of thinking The first positivist line of thought is interlaced with the theory of autopoiesis, which finds a legal system autonomous and self-referential.35 Nevertheless, this system is cognitively open, which means that it is influenced by and may even absorb non-legal norms, making them its own.36 From here, a link can be made with the theory between background and foreground normative theory.37 Background theory is immanent in the law and is often stated implicitly rather than explicitly. The foreground values are found outside the law. Thus, political theories on pluralism, liberalism, or republicanism are in the foreground. The court and foreground theories use background theories; this may help lawyers by providing theoretical models which may assist the search for background values of law.

The second line of thinking is that no clear separation between rules of law and values exists or that they are even intertwined.38 The contents of public law can only be properly understood against the background of the political theory that a society actually espouses. Such theory is part of the law. For the positivist, but not for the interpretivist, values can be immanent in the law without actually being part of it.

These two lines are also qualified as the red and the green light39 or the line of functionalism and normativism.40 The red light refers to positivists that believe law should be dealt with by formal, external mechanisms such as courts and tribunals. The focus is on the protection of citizens and restrictive interpretation of the scope of public power. Administrative law is then value-neutral. The green light considers law as being instrumental. The prime concern of administrative law is to facilitate the execution of public programmes and policies. Internal control and political control are preferred over a formal legal institution. For them law is value-laden and ripe for critical assessment against moral and political criteria.

(b) Values in public law In public law, the following immanent values are recognized: representation, accountability, juridical deference, a public-private dichotomy, equality before the law, protection of the individual, access to the courts, executive authority, diffusion of public power, transparency, participation, and promotion of public interest. These values have some aspects in common. They are products of an interaction between legislative and judicial activity and are partial values latent in public law. These values are dynamic rather than static and may even outweigh each other. This should be impossible according to Dworkin, so it is here that we deviate from his theory. Practice requires it.

These values are subject to various mutual conflicts, partially due to their level of abstractness. Normative principles purport to explain and justify legal rules so that they become general. At the same time, the abstractness and immanency of these values may constitute disagreement about what concrete rules they require or justify.

33 Kelsen 1997, 19. 34 Craig 2000, 228–30. 35 Teubner 1984, 85. 36 Teubner 1993. 37 Harlow 2006. 38 Craig 2000, 228–30. 39 Harlow and Rawlings 2009, 1. 40 Loughlin 1992.