4. The Nature of Principles in the Legal Theory

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 Raz 2003; Raz 2009. 42 Addink 2008. 43 ECHR 2 October 2012, 5744/05 (Czaja v Poland). 44 Alexy 2002. 45 Alexy 2016, 65.

philosophers have actually recognized a limited number of strong rights, and constitutional courts have recognized an increasing number of relatively weak rights.46 One core feature of constitutional rights practice is that the constitutional rights can be limited by subjecting them to a balancing exercise or an analysis concerning proportionality. This discussion is not relevant in countries where only a constitutional court exists, but each country faces tensions between fundamental rights and relative human rights.

Second, the role of good governance depends considerably on its qualification as a principle or a fundamental right. As the development of good governance is still ongoing, it is better to provide a theoretical framework in which good governance is allowed full play. Finally, we make the link—as Alexy did—between principles and values.

Alexy’s theory of constitutional rights addresses the nature of and the relation between rules and principles within one legal framework. Both rules and principles are legal norms, but they have a different outlook and function. Rules refer to the aspect of positive law, while principles are optimization requirements of the legal system as a whole. This means that principles should be observed as much as possible within the given legal framework.47 Rules are either fulfilled or not. The distinction between the two is ‘a key to the resolution of central problems of constitutional rights doctrine’.48

(b) Principles as such and principles in the context of rules Principles should be realized to the greatest extent legally and factually possible. Principles are therefore not definite requirements like rules are, but entail very strong claims to be fulfilled. Principles resemble certain values which are immanent to a system of law. Therefore, principles are applicable ex systema iuridica. The relationship between reason and counter-reason will not be decided by the principle itself.

This is quite different in the case of rules. Rules insist that one should do exactly as required, of course within the bounds of reasonableness. Alexy prefers a nuanced model as far as rules are concerned, since it is possible to incorporate an exception into a rule on the occasion of a particular case. When this occurs, the rule loses its definitive character in the particular case. The incorporation of an exception could be based on a principle. When the legal system does not prohibit the limitation of rules by incorporation of exceptions, the rules for which this prohibition applies may keep their strictly definitive character.

Principles have a certain weight, which is important in case of clashes. In general, a principle is trumped when a competing principle has a greater weight in the case to be decided. By contrast, a rule is not automatically trumped when its underlying principle is outweighed by another competing principle but rather depends on the balance of all principles involved. For example, rules passed by an authority acting within its jurisdiction are to be followed, and principles state that one should not depart from an established practice without any good reason. Such principles can be called ‘formal principles’. The more weight that is given to formal principles within a legal system, the stronger the need to elaborate in concrete rules its ‘prima facie’ character. When such principles are completely deprived of any weight, certain rules would no longer apply. In a situation like this, rules and principles would have the same prima facie character.

46 Kumm 2007. 47 Alexy 2002, 47–8. 48 Ibid, 44.

The prima facie character of rules and principles has different consequences for each. The difference can also be seen in situations of burden of argumentation, which has more effect on principles than on rules. A burden of argumentation strengthens the prima facie character of a principle, but the prima facie character of a rule resting on an authoritative creation or a long-standing acceptance is something quite different and much stronger. Thus, the proposition that rules and principles differ from each other in their prima facie character should be maintained in spite of some necessary modifications.

(c) Radius of principles Although it is impossible to provide an exhaustive reflection on the ideas of Dworkin concerning principles, his ideas need some explanation in addition to the section on Dworkin and Hart. We have concluded that principles are needed in addition to positive law, as positive law leaves gaps that have to be bridged.

Dworkin usually refers to principles when he talks of ‘a set of standards other than rules’.49 But he has elaborated upon the radius of principles. Dworkin leaves policies out of this radius, as policies resemble certain goals whereas principles have a dimension of weight and importance; they are requirements of justice and fairness.50 This difference is important, as principles subsequently have a certain weight, which he calls their ‘relative weight’.

Principles do not appear in an all-or-nothing fashion and do not automatically have legal consequences as rules obviously do. Principles have relative weight only until they are articulated in concrete legal rules and then they have definite reason. As long as principles have relative weight, they are to be balanced in accordance to the difference in weight; balanced but not outweighed. In this model, it is impossible to insist on a complete disregard of one principle.

(d) Differences between Dworkin and Alexy Now we see a difference between Dworkin and Alexy. Both conclude that rules and principles are different as to their outlook and their function. Still, some differences exist between both authors. Dworkin regards rules as definite reasons whereas he regards principles as merely prima facie reasons which should be elaborated in concrete rules.51 Rules automatically have legal consequences when certain conditions are met, and then in an all-or-nothing fashion.52 To Alexy, both rules and principles are legally binding but not in the same way; they differ in character as explained above. Still, rules and principles can differ among themselves in their character. Perhaps this is more obvious for principles than for rules and therefore it is interesting to follow his way of reasoning. According to Alexy, principles already have legal consequences. Dworkin on the other hand recognizes the legal consequences after elaboration of the principles in rules.

(e) Rules and principles as reasons Rules and principles resemble a different kind of reason. They are like prima facie reasons, at least as long as no exception is to be read into them. However, stating that

49 Dworkin 1977, 22. 50 Ibid. 51 Ibid, 22–4. 52 Ibid, 22–31.