7. Conclusions

(a) Principles and values The difference between principles and values is reduced here to just one point. Norms are distinguished in axiological norms and deontological norms. The first refers to an evaluative criterion or value. The second concerns the existence of a rule or principle. What, under a system of values, is prima facie the best, is under a system of principles what prima facie ought to be; and what under a system of values is definitively the best, is under a system of principles what definitively ought to be. Principles and values are distinguished by their respective deontological and axiological characteristics only.75

(b) Position of law Law is concerned with what ought to be. This counts in favour of the model of principles. On the other hand, it is not difficult to move from the idea that a certain solution is constitutionally speaking the best in terms of positive law, to the idea that certain principles stem from the constitution. The moment one accepts such transitions as possible, they are entirely acceptable for legal reasoning to proceed from a model of values instead of a model of principles. However, the model principles have the advantage that they express the obligatory nature of law quite clearly. In addition, the concept of a principle gives rise to fewer misconceptions. Both of these points are important enough for us to prefer the model of principles.

7. Conclusions

From the interpretative approach of Dworkin there is more room for the development of new good governance principles. Also, Hart would accept such principles, as long as they are laid down in positive law. There are different conceptions around a common fundamental value. These different conceptions are, to a large extent, expressed in the principles connected with the interpretive legal concept. But we also have to see that it is important for legal certainty and equality that these principles have to be codified as much as possible in the positive law. Having the principles of good governance as solely unwritten principles is not enough.

These concepts of the importance of the principles and the codification of the principles in positive law can be developed on national, regional, and international levels. There is a continuous line from one level to another in which these concepts become increasingly developed. Good governance is related to positive law and to its underlying principles. These principles are linked to the underlying values.

From a legal perspective, the discussion between principles and rights in the context of good governance is also relevant. We see a difference in the more or less abstract character of the legal norm. The principle can be seen as an abstract legal norm and the right is a concrete legal norm. Alexy and Dworkin both have an open eye for the principles and the rules, but on the topic of principles they do not have exactly the same opinion. Alexy gives legal weight to principles whereas Dworkin seems to be of the opinion that the legal effect will be realized by the rules in which the principle has been codified.

The theory of principles and the principle of proportionality are related to each other and the principle of proportionality has been specified. It is interesting to see

75 Ibid, 92.

that in relation to fundamental rights Alexy works with the concept of optimization requirements in relation to these rights. This is also a norm which presents the principles of good governance in context.76

Furthermore, principles are differently ‘valued’, so their role in particular cases may differ depending on how much weight they bear in that particular case. Values are often regarded as the ground for principles. Different concepts have been developed in relation to this relationship. Most importantly, the principles are requirements of a particular nature, while values are seen as what is ultimately good. A distinction also can be made with the comparison between the notion that something has value and something is a value.

We conclude by looking at good governance as a principle and good governance as a value. The difference between principles and values is reduced to just one point. Norms are distinguished in axiological norms and deontological norms. The first refers to an evaluative criterion or value. The second concerns the existence of a rule or principle. What, under a system of values, is prima facie the best, is under a system of principles what prima facie ought to be; and what under a system of values is definitively the best, is under a system of principles what definitively ought to be. That is relevant in the context of principles of good governance.

76 Boustra 2010.