The nature and significance of legal principles, and their relationship to legal rules, has long provided a focus for jurisprudential reflection. A famous example is provided by Rudolf von Ihering’s Geist des Romischen Rechts. In the first volume of that work, which was written before the adoption of his later instrumentalism, Ihering suggests that the “spirit” of Roman law was animated by underlying principles lending coherence and fertility to the rules. In possessing such a groundwork of principles, the law resembled an alphabetic script where the letters can be combined in diverse ways to generate an infinite richness. By contrast with this, legal systems which consist only of detailed rules, without underlying principles, resemble ideographic scripts where each individual sign stands alone and must be learned separately. More recently, the early essays of Ronald Dworkin explored the idea that the place of principles within the law is impossible to reconcile with the separability of law and morals asserted by legal positivists. The very different views of Ihering and Dworkin both point to law’s basis in moral reason.
A number of features tend to be associated with the description of a legal or moral prescription as a “principle” rather than a “rule”. Principles are thought of as highly general in scope and they are often considered to be independent of merely instrumental considerations. Thus, to act “on principle” is to evince a concern with general issues extending beyond the immediate context while eschewing any concern with the pursuit of principle-independent goals. Great generality, however, can lead to unpredictability in the prescription’s future application, while the non-instrumental value of principled observance can seem obscure. In the face of such problems, when principles are mentioned in an everyday context, they are sometimes treated as expressing only an “ideal” ought, which must give way in the face of real-world circumstances. In the law, it may be suggested (with Ronald Dworkin) that, while rules require certain outcomes and must be applied in “all or nothing” fashion, principles offer non-conclusive reasons for decision which must be weighed against competing considerations. A further suggestion might be that, while rules order actions, principles are second-order prescriptions that order rules, both in being abstracted from the system of rules as a whole and in serving to inform the interpretation, application and development of the rules. All of these ideas, in various combinations, can play a role in the tangled debate concerning legal principles.
When viewed in abstraction from any institutional context, reason offers us only the most general guidelines for conduct. It is the indeterminacy of reason, when combined with our urgent need for social cooperation, that mandates and so legitimates the creation of positive law. A complex hermeneutic relationship exists between moral reason and the law, with the law lending determinacy to the broad prescriptions of reason while those prescriptions themselves inform the interpretation of the law. Ihering was no doubt profoundly conscious of this mutual dependency between detailed rules and general principles. He could not be other than deeply aware of the disaster that a passionate attachment to empty abstractions (such as “liberty, equality, and fraternity”) had, only a little over half a century earlier, given rise. Consequently, he emphasised that the architects of Roman law worked with the extant laws as they found them and distilled from their content the underlying principles that could guide both interpretation and future legal developments. In this way, juridical interpretation exhibited a benign and conservative interdependence between the detail of the rules and the principle-structured “spirit” that was discernible in the system as a whole. The governing aim was always to develop a corpus of rules that could resolve disputes justly and coherently, in a manner that was mindful of the established ways of life of the community governed by the law. Ihering understood that “principles” cannot be treated as independently intelligible abstractions providing a point of critical leverage upon a body of laws to which they stand as censors rather than guiding spirits.
In his famous and very widely cited book A Theory of Constitutional Rights (translated by J. Rivers) (Oxford 2002), Robert Alexy proposed that the constitutional rights established by the German Basic Law should be regarded as principles in what he took to be something close to the Dworkinian sense. Furthermore, seeking to lend more rigour to Dworkin’s approach, Alexy proposed that principles (and therefore, on his view, rights) constitute requirements of optimisation in the legal and factual circumstances. In other words, they are requirements that something be realised to the highest degree that is possible, given the facts and the laws as they are. Conflicts between principles, on Alexy’s account, require that the court should establish a conditional priority of one principle over another: a priority that is tied to the circumstances of the particular case. In this way, Alexy’s analysis purports to reveal the way in which decisions on clashes of principle give rise to rules, since the conditions under which one principle takes priority over another constitute the operative facts of a rule giving legal effect to the principle deemed prior. The analysis is intended to bring out the symmetry of form between the idea of legal principle and the proportionality test that plays such a fundamental role within the law of constitutional or human rights. Indeed, Alexy states (in the volume under review) that the “practical significance” of his analysis “is found above all in its equivalence to the principle of proportionality” (p. 20). By appearing to ground the doctrine of proportionality in a rich and complex jurisprudential theory, Alexy’s work has acquired great prominence in many jurisdictions across the globe.
There is, of course, something odd in suggesting that an analysis of the idea of principle is itself equivalent to one particular principle, causing one to wonder why Alexy did not simply offer his theory as a theory of proportionality, rather than a theory of the nature of principles. The implicit strategy seems to be to respond to those who see proportionality doctrine as a serious weakening of the rigorous rule-based character of law. For, by equating proportionality doctrine to the operation of legal principles, one suggests that such “balancing” tests are already a well-established feature of legal thought. Whatever the motivation for Alexy’s choice, it is surely interesting that Dworkin, while viewing the general body of law as structured and informed by principles, nevertheless (as Alexy acknowledges) rejects the idea that decisions on constitutional rights should be shaped by a “balancing” process of rights against other competing values, holding that rights are “trumps” which override (rather than outweigh) competing considerations, their scope to be determined by what Dworkin describes as “the very different question of what morality requires” (R. Dworkin, Is Democracy Possible Here? (Princeton 2006), p. 27).
Constitutional rights are today very often framed in terms of fundamental human interests. But, interestingly, many of the legal principles (as opposed to constitutional rights) that Dworkin cites are not best understood as serving interests or states of affairs that are describable independently of the principles themselves. Rather, legal principles (such as “no man may profit from his own wrong” or “the courts will not permit themselves to be used as instruments of inequity or injustice”) contemplate no particular state of affairs as their goal, other than the state of affairs which consists in compliance with the principle itself. Such principles are ill-suited to analysis as “optimisation requirements”, since any such analysis threatens confusion between the requirement to optimise and the principle compliance with which is to be optimised. Principles of this sort are to be honoured or respected, and such forms of observance can be described as “optimisation” only by pitching one’s analysis at a uninformatively abstract level. The honouring of principle is intended to reflect the character of civil relations and the mode of civilised governance, rather than any set of desirable goals to be achieved thereby.
The current volume collects together the key papers (one of which has not previously appeared in English) in a debate that focuses upon Alexy’s analysis of principles. It is an important debate with which many Anglo-American readers have not yet fully engaged. The Alexy/Poscher papers are preceded by a compact editorial introduction and a useful table of German to English translations. The volume concludes with a reflective essay by David Duarte. The analysis of issues is, throughout, rigorous and demanding. But the volume’s focus is narrow and readers may well conclude that a much broader perspective is essential to a full appreciation of the issues that underlie the important questions raised.
Certainly, some of Poscher’s criticisms of Alexy reflect more familiar critiques of the proportionality test, particularly those that regret the erosion of rule-based conceptions of legality and their replacement by balancing tests of one sort or another. Poscher views Alexy’s principles as “phantom objects” that struggle to find a stable theoretical analysis and lack any reliably shared mode of identification. Alexy responds to such criticisms in detail and with flexibility, deploying arguments which tend to draw ever more deeply upon his broader jurisprudence of law’s “dual nature” as both factual and ideal. This enhances the significance of the debate for those (like the reviewer) who are interested in Alexy’s general theory of law, but may problematise Alexy’s position in the eyes of others who see themselves as having more immediately doctrinal issues to resolve.
Many of the difficulties with Alexy’s analysis stem from his evident desire to portray the proportionality doctrine as a direct consequence of the nature of rights as “principles”, and the application of principles as naturally generating “rules”. But it is difficult to sustain either of these suggestions. Analysis in terms of proportionality gives rise to an understanding of principles that is at best misleadingly abstract; and the suggestion that applications of the proportionality test inexorably generate rules is also misguided, at least if we are speaking of usable rules that can guide future judicial decisions. For, while judges cannot justify their decisions by reference to features of the instant case that would fail the test of universalisability (e.g. the date of the decision or the identity of the plaintiff), they can easily (in the context of proportionality) justify their decisions by reference to complex assemblages of universalisable features, so that no workable rule applicable to a significant range of future cases emerges.
There are important differences between those immanent principles that articulate the “spirit” of the law and enacted constitutional rights as modified by proportionality. Legal principles in general are (as Ihering saw) generalised from existing legal rules and they serve to stabilise and lend objectivity to the interpretation and development of the rules. They are grounded in the assumption that the posited legal rules, if legitimate (and how could a court enforce them except on that assumption?), must be a good faith attempt to articulate the requirements of justice and the common good. For that reason, they can stand in an informative and generative relationship with the law’s positive provisions. But constitutional rights are entirely different. They are in general not developed from the warp and woof of the law but introduced with the intention of having a censorial and reformative role. Quite often, they are created by a constitutional convention or an international treaty. Such circumstances of creation, requiring as they do consensus upon a final text, press towards vacuity. Is this not closer to the corrosive “liberty, equality and fraternity” of which Ihering might have been so wary? Is it not a considerable distance from the principles that formed the spirit of Roman, or any other sophisticated system of, law?
