“Doctrine of Principles” in Neo-Constitutional Theories and the Principle of Reasonableness in Action
© Springer International Publishing Switzerland 2015Laura Pineschi (ed.)General Principles of Law – The Role of the JudiciaryIus Gentium: Comparative Perspectives on Law and Justice4610.1007/978-3-319-19180-5_5
The “Doctrine of Principles” in Neo-Constitutional Theories and the Principle of Reasonableness in Action
Ph.D. Candidate in Legal Theory, University of Parma, Parma, Italy
Francesco De Vanna
The application of legal principles in legal argument is a fundamental claim of the neo-constitutionalist legal theory. Principles are at the top of the legal hierarchy and provide for the material unity of the judicial system, which is a pluralistic one and intertwined with various needs. Consequently, principles are to be regarded as prior and antecedent to rules, from a pre-political, fundamental point of view aiming at the judicialization of power. Considering the expansive nature of principles, in particular constitutional principles and principles proclaimed by supranational Charters of rights, it is no longer sufficient to respect the law’s prescriptions about who and how: gradually, and mostly thanks to the control of constitutional legitimacy, an unavoidable question is arising about the what of law, the an of legal rulings as well as its compatibility with the standards of justice. Dworkin, in particular, affirms that principles are first of all “a requirement of justice or fairness or some other dimension of morality”; they rightly step into the world of law thanks to the adequacy and to the justification power they show. The first part of the present chapter will analyze the definitive recognition of the normative character of principles; in particular the difference of their structure and functioning from rules, and finally the different and similar aspects between principles and values. The second part of the chapter will observe more closely the functioning of principle of reasonableness, through the analysis of some passages of important judgments.
Neo-constitutionalism1 developed in the last few decades from the theories of Ronald Dworkin: with a great variety of single expressions, it asserts the inherently pervasive power of the Constitution, emphasizes the need to specify a catalogue of fundamental rights, adopts the methodological distinction between rules and principles and highlights the norm-generative function of the latter.2 These are assumed as parameters for the validity of the right.
Neo-constitutionalism as a theory of law, therefore, reshapes the hierarchy of sources: it subordinates ordinary law to constitutional norms, not only at a formal, logical and procedural level, but also and most importantly at a substantial, axiological level.3 The Constitution is not only to be regarded as the founding moment of the legal system, nor only as the meta-norm concerning the production of law. On the contrary, it assumes the value of a substantial project by which the legislator must abide; it becomes a goal to attain, a “positivized world view”.4 Ultimately, then, the Constitution asserts explicitly not only the existence and validity of law, but also the conditions for its validity and the postulates of individual and collective morality.
In this respect, neo-constitutionalism sets forth arguments concerning both legitimacy and legality: it denies that legitimacy can be created only through Kelsen’s nomodynamics, while it considers way more relevant the derivation of legitimacy through nomostatics. It is no longer sufficient to respect the law’s prescriptions about who and how: gradually but irreversibly, and mostly thanks to the control of constitutional legitimacy, an unavoidable question is arising about the what of law, the an of legal rulings as well as its compatibility with the standards of justice acknowledged and proclaimed by all fundamental Charters and catalogues of rights.
The function of general principles, therefore, is enhanced, especially in rigid constitutional systems which include the constitutional control of laws: general principles aim not only at filling in possible legislative omissions, but also at influencing the interpretation of existing provisions.5 In other words, while positive law codes used to consider principles as playing an essentially interstitial role, they have come to constitute a set of legal rules and standards which might potentially regulate all matters subject to law. Considering the expansive nature of principles, in particular constitutional principles and principles proclaimed by supranational Charters of rights, it has become unthinkable for any field of law to produce norms without taking into account the Constitution. Principles such as neminem laedere and cuique suum tribuere, the principle of formal and substantial equality, the inquisitorial principle in civil and criminal trials and the principles of due process and favor rei: these are only a few of the criteria and of the trial or procedural materials which constitute the soul of our systems and give them their unique “way of being”.
The first part of the present chapter will analyze the definitive recognition of the normative character of principles; in particular their ontological status (juridical or moral?), the difference of their structure and functioning from rules, and finally the different and similar aspects between principles and values. The second part of the chapter will observe more closely the functioning of principles “in action”, through the analysis of some passages of important judgments.
2 Principles Between Morality and Law
One of the key aspects of the neo-constitutional model is its tendency to consider law principles from a moral point of view. After admitting in his Postscript that he did not give principles the importance they deserve, Herbert Hart asserts that in some judicial systems (like the American one), criteria of validity may include justice principles and substantial moral values.6 Dworkin, of course, sustains this point with even greater decision. He affirms that principles are first of all “a requirement of justice or fairness or some other dimension of morality”7; they rightly step into the world of law thanks to the adequacy and to the justification power they show. Dworkin bases his legal theory on an ethical objectivism according to which there are moral truths that constitute fundamental theoretical premises, capable of justifying the “truth” or “falsity” of some normative and interpretative conclusions.8 It is thanks to the constructive work of the interpreter that moral premises, hidden in the net of the judicial system, can enter the field of law and assume the status of juridical norms. Principles, this way, fully become a part of the system and find their legitimacy in the idea of justice itself, not in a single decision by the legislator. Therefore, should a principle cease to be considered valid, tribunals would simply stop applying it, without necessarily waiting for its formal abrogation. For this reason, the interpreter is presented with the obligation to not only represent the past, but also imagine future law, consistently with the moral and juridical history of a system. Of course, it is unthinkable that all moral principles of a community may become the basis for judicial decisions, perhaps even in contrast with precise legal dispositions, because this would destroy the functional difference set between law and morality. Before receiving a juridical form, some principles not yet included in law often show through already accepted standards. But when they assume a legal status, and gradually start to support a chain of precedents, they become “crystallized” juridical standards, and as such they determine the decisions of judges. In this respect, Dworkin suggests a precise theory, called “of the institutional support”.
According to this theory, a principle, in order to receive a juridical form, must have been mentioned in previous judicial decisions or in the highest possible number of laws, not considering its appearance in their forewords, preparatory works or any other accompanying document. In conclusion, as Jürgen Habermas affirms, “principles have both a juridical and a moral nature”9 and they are necessarily in a sort of “middle earth”, halfway between the boundaries of law and morality.
3 Principles Versus Rules
In constitutional systems, principles no longer play just an “auxiliary” role, because their normative form seems particularly apt to protect primary rights, much better than classic general rules may do. Principles are at the top of the legal hierarchy and provide for the material unity of the judicial system, which is a pluralistic one and intertwined with various needs. Consequently, principles are to be regarded as prior and antecedent to rules, from a pre-political, fundamental point of view aiming at the judicialization of power.
Robert Alexy considers principles as “optimization precepts” with variable intensity (Optimisierungsgebote), i.e. norms prescribing something which must be realized to the furthest extent possible, but with different intensity grades and depending on legal and practical possibilities. Rules, on the contrary, are regarded as definitive precepts (definitive Gebote), which order, forbid, allow or authorize something in a decisive way, following an “all or nothing” logic, without anything in between.10 The gradable and optimizable character of principles derives from the breadth of their definition and of their meaning, which affects the conditions for their application. In situations of conflict, e.g. when one principle forbids and another one authorizes, the interpreter will not disapply one in favour of the other, as he would normally do in case of colliding rules; he will rather balance the two principles and tend to give a greater or smaller relevance to each one, establishing a hierarchy between them.11 Therefore, it is possible to assert that conflicts between principles must refer to the dimension of individual consideration (or balancing), while conflicts between rules must refer to the dimension of validity, specified through the technique of subsumption. Moreover, Alexy’s balancing demands the comparison of three requirements, which derive from the need for rationality and proportionality: such requirements are “appropriateness”, i.e. adequacy of the chosen means; “necessity”, i.e. infringement as light as possible of the “sacrificed” principle; and finally “proportionality” in the strict sense of the word, in order to rule the application of all other possible principles in a case. This last principle follows Pareto’s efficiency, which states that the poor realization of one principle must be balanced by the best possible fulfilment of the opposing principle.
One of the main points of Dworkin’s theory is the distinction between rules and principles. Dworkin proved that judges do apply relevant juridical principles, through an analysis of the famous case Riggs v. Palmer of 1889, where the Court of Appeals of New York had to decide whether a person indicated as heir in his grandfather’s will still had the right to inherit, even though he had killed his grandfather precisely for that purpose. Laws as well as judicial precedents gave the right to inherit to whoever was indicated as heir in a will, without exceptions. But the Court, basing on several other cases, elaborated the principle according to which nobody may benefit from their own crime: this justified a new interpretation of the law, thus denying the killer the right to succession. If the Court had not taken into account this principle, a literal interpretation of the law would have led to an opposite solution of the case, contrasting with reason and basic ideas of justice. This case assumed a particular relevance in jus-philosophical literature, because it is regarded as the first and most effective counter-argument against the most anachronistic statements of legal positivism.
The rule is always connected with a type of offense which can be described through Kelsen’s “hypothetical imperative”, i.e. through a conditional phrase establishing a connection between a conditioning cause and a conditioned consequence (If “x”… then “y”…). The rule, moreover, accepts only explicit exceptions; the principle is not as positive, it also accepts implicit exceptions and it needs to be put into effect by the legislator or by the judge, who will relate it to concrete types of offense and will specify its juridical consequences. The point is not to interpret the principle, as it is usually expressed with clear words; nor to create new law, as the law’s field of action remains the same: the considered case is already under a field of law anyway, so the point is just to define which principles are pertinent, basing on inference and constructive reasoning.
Focusing now on the role played by norms in juridical reasoning, it is possible to distinguish between rules and principles basing on the concept of “reason to act”. According to Atienza and Ruiz Manero, rules are “peremptory” reasons, while explicit principles are independent but not peremptory reasons to act, as they constitute first grade reasons whose weight needs to be evaluated by the court with respect to other reasons. Implicit principles, on the contrary, are not considered as peremptory reasons nor as independent reasons, because the courts have to analyze their qualitative content, i.e., courts have to analyze their congruence with rules and other principles mentioned in sources.12
Principles interact with rules; they strengthen them, they even restrict them, they justify the enunciation of new judicial rules. To use a circular image, it is possible to affirm that the principles of law receive their judicial character from their direct relation with rules, most importantly the rule of recognition, but at the same time rules receive their validity only from principles. This is almost a paradox, but, as Neil MacCormick observes:
This means essentially that both theory and convictions have to be gradually adjusted, until they reach a situation of satisfactory stability. With regard to this point, John Rawls theorized the “reflective balance”:
[W]hen we view the law in action what we see is a constant dialectic between what has been and is taken as settled, and the continuing dynamic process of trying to settle new problems satisfactorily and old problems in what now seems a more satisfactory way.13
The mention of “judgments” calls to mind another term for comparison of principles, that is to say, values.
It is an equilibrium because at last our principles and judgments coincide; and it is reflective since we know to what principles our judgments conform and the premises of their derivation.14
4 Principles or “Tyrannical Values”?
Neo-constitutionalism often mentions how principles share some aspects with values, as the notion of value clearly explains the “fundamental” nature of principles: easy examples are equality, social dignity, democratic participation in the life of institutions. However, it is not simple to establish if, and to what extent, values affect the sphere of law, and if they are consubstantial to principles, or if, on the contrary, they belong to different normative and ideological areas.
According to MacCormick, not even positivists would ever assert that law is not based on any value; at most, they might sustain that it is not necessary to share such values in order to know that law exists and must be observed. From his point of view:
Alexy’s thesis, in this respect, sounds totally pertinent. It affirms that principles clearly show a “wide structural resemblance” to values; they call for the correctness of moral arguments and demand a rational basis for judicial discourses. It is possible to observe a set of general rules of moral argumentation which might also be regarded as rules for the justification, in a juridical sense: a certain moral order is considered right if it is based on universal premises, which are also the premises for the general practical discourse. The common demand of a juridical and moral foundation is the key to the passage from correctness to justice; law, in addition to being valid at a formal level, also becomes just at a qualitative level. Therefore, Alexy supports the correlation between principles and values on the basis of the structural characteristics of principles (which set them apart from rules); this theory is part of the thesis of the connection between law and morality. Judgments of values, just like judgments of principles, may be considered evaluation rules as well as evaluation criteria.
Law certainly embodies values and these values are characteristically expressed in statements of the principles of a given legal system. But … values are only “embodied” in law in the sense that and to the extent that human beings approve of the laws they have because of the states of affairs they are supposed to secure, being states of affairs which are on some ground deemed just or otherwise good.15
However, some German thinkers such as Hoerster and Habermas opposed this point of view, taking into consideration some critical premises of Carl Schmitt’s The Tyranny of Values. Here it is affirmed that if the practice of law is too strictly connected to values, its rationality in scientific terms is compromised, as law becomes unclear and arbitrary; moreover, this would legitimate a constant intervention of the State on the freedom of citizens. For these reasons, Hoerster and Habermas strongly defend a clear logical distinction between principles and values. This distinction coincides for them with the distinction between the deontological status and the teleological status. Habermas asserts that principles have a deontological nature and belong to Kant’s category of “right”: they are universally and unconditionally valid and oblige recipients. Values, on the contrary, have a teleological nature and are related to Aristotle’s dimension of “good life”, as they express preferences about certain objects: their validity, therefore, is not universal, but historicized and local. Consequently, what is due to all (principles) should not clash with what is good only for us (values); this would destroy the famous “firewall”16 which Habermas imagines inside the juridical discourse and which only a deontological concept of principles can preserve. In order to understand the core of this problem, it is necessary to refer to the concept of “complementarity”, which according to Habermas constitutes the relation between law and morality. Juridical problems and moral questions arise from the same conflicts of action, but in different forms, as law is not just a symbolic system, but rather a system of action. Law and morality remain “structurally intertwined”, because institutional processes require forms of argumentation which must necessarily remain open to moral reasons. Following post-conventional processes of foundation, law emancipated from the traditional approach, and “now morality has reached the very heart of positive law, without losing itself in the process”.17
Distinction, not separation: this situation leads to the distinction between principles, which are potentially universal, and values, which are shared by individuals in precise, historically determined systems. It follows inevitably that “principles or higher-level norms, in the light of which other norms can be justified, have a deontological sense, whereas values are teleological”.18
Habermas, in this respect, is closer to the point of view of American constitutionalists: they make a sharper distinction than Germans between approaches which consider fundamental rights as judicial principles and approaches which consider them as value guidelines. Alexy’s perspective, on the contrary, absorbed more of the opinions issued by the German Federal Constitutional Court, which tends to consider the rights expressed in the Grundgesetz as an objektive Weltordnung, i.e. as a system of objective values capable of giving life to the whole judicial activity of the State.19
Also Gustavo Zagrebelsky agrees with the distinction of principles and values, and criticizes the latter with sharp arguments. In particular, he regards principles as “initial goods” which suggest to behaving in such a way that each and every action becomes an expression of the principle itself. The criterion of validity of actions will be the adequacy and predictability of the behavior with respect to the adopted principles. Values, on the other hand, are “final goods”: they justify all means used between the start and the end of an action, as long as these are compatible with their ethos. 20 This is why values are difficult to define with rational criteria. They do not suggest, they rather order to behave in the most adequate way in order to attain a certain goal; in this case the criterion of validity of actions will not be their adequacy, but rather their mere efficiency.
5 Arguments of Principle and Arguments of Policy
A further distinction, which emerges essentially in Dworkin’s theory and was partially recalled by Habermas, is the distinction between “arguments of principle” and “arguments of policy”, in relation to the different functions conducted by the judicial and the legislative power. While the principle is a requirement of justice and equity preserving the fundamental rights of the individual, the policy is a criterion which sets a goal to achieve, a social and economic amelioration in the interest of collective purpose.
Dworkin affirms that “principles are propositions that describe rights, policies are propositions that describe purposes”:21 they both aim at the realization of a political or moral purpose, but rights are connected to identified political purposes, while goals are connected to unidentified purposes. It is up to the legislator to establish general policies respectively deriving from them, but there are some cases in which the judge is asked to fill the legislator’s post due to the delicacy of the matter under consideration, or due to the complexity of the arguments related to it. In these cases, the judge decides on the basis of arguments of principle as well as legislative policy, often letting the latter prevail on the former. According to Dworkin, however, the judges should always decide, even in difficult cases, on the basis of arguments of principle.
In the Spartan Steel case,22 some employees of a company cut the electricity cable which provided a nearby steel plant with energy, causing the damaging of the in process casting, in addition to the loss of the three following castings due to the machineries’ induced inactivity. The company was later forced to close down during the period of maintenance: for these reasons, the company asked for the reparation of all the damages, from the first to the fourth casting. Lord Denning, one of the magistrates of the judging committee, affirmed:
It seems to me better to consider the particular relationship in hand, and see whether or not, as a matter of policy, economic loss should be recoverable, or not.
It was therefore a matter of establishing whether a duty of care subsisted at the expense of the defendant and whether the damaged company had a right to reparation for the economic loss derived from the interruption of the electric provision of its property. The Court upheld the request of reparation only within the first casting, but it denied it in relation to the other three, as in that case the damage was “too remote” and based only on a subjective profile of negligence. 23 The judge goes on:
According to Lord Denning, if the Court had recognised the indemnification of the pure economic damage, the precedent would have been valid in every future controversy, thus increasing the risk of abuse which derives from the impossibility of positively proving the loss of income. Dworkin makes use of the case to demonstrate how different it is to consider whether the claimant has a right to reparation and to consider, instead, whether it is economically wise to distribute liability for accidents in the way the plaintiff suggested. Consequently in the first case it would have been about an argument of principle, whereas, in the second one, it would have been about an argument of policy.
[I]n such a hazard as this, the risk of economic loss should be suffered by the whole community who suffer the losses—usually many but comparatively small losses—rather than on the one pair of shoulders, that is, on the contractor on whom the total of them, all added together, might be very heavy.
Decisions based on arguments of policy can be sustained on an ad hoc basis, every time according to the case, while an argument of principle can justify a particular decision only if it is possible to prove it is coherent with the previous decisions and with the decisions that the magistrates would make in similar cases. As a matter of fact, in the Spartan Steel case, the complainant did not sustain the existence of a law establishing a right to the reparation of the suffered economic damages, but he referred to some precedents, which had allowed the reparation for other types of damages, and claimed that the principle at the bottom of those cases required a similar decision in this case too. According to Dworkin’s perspective, if the plaintive makes claim of a right in relation to the defendant, in that case the latter has a correspondent duty, which, even though not traceable in any explicit legislative bill, could anyway justify a conviction against him.
I propose … the thesis that judicial decisions in civil cases, even in hard cases like Spartan Steel, characteristically are and should be generated by principle not policy.24
Dworkin’s belief that principles confer rights in opposition to goals is not shared by MacCormick, according to whom the spheres of principles and policies are inevitably related. He asserts that:
Therefore, this equates with asserting that “to articulate the desiderability of some general policy-goal is to state a principle. To state a principle is to frame a possible policy-goal”.26 Nevertheless, although Dworkin does not accept the identification of principles with policies, he does not even neglect to underline how between the two normative entities there could be a logical sequence of interferences, which can result in their reciprocal inter-changeability, especially in trials of democratic deliberation.
For any goal g, to say that is a goal which ought to be secured is to enunciate a principle or a judgment dependent on some unstated but presupposed principle.25
6 Rights as “Matters of Principle”
The dynamics principles-policies are indissolubly connected to the conception of rights and to the anti-utilitarian authority they exercise in relation to functional arguments. They act both as justification of judicial decisions, and in the phases of democratic legislation as means for the limitation of the powers of the majority, wherefore, as Dworkin states, if “someone has a right to something, therefore it is incorrect on the part of the State to deny it, even though it would be more useful to act along these lines in the general interest”. Rights are, therefore, “a matter of principle”.27
Starting from the general principle of equal concern and respect, Dworkin gives rights a moral value which cannot be remitted to the contingent consideration of the majorities, if not by accepting the risk of individuals not being treated as equals. Dworkin’s conviction grows out of his own experience as a jurist and of his awareness that the principles of the American constitutional history indicate the priority of moral rights of the individuals.
To some extent, the approach adopted by Habermas is analogous. He claims that the rights of individuals should be guaranteed thanks to the deontological force of the arguments of principle, and that they could be surpassed by political purposes only when the latter operate in defence of further individual rights. Considering the freedom of expression, the right to health and social dignity as juridical optimizable goods, as Alexy does, means to subdue the principles to economic rationality criteria and to an instrumental analysis of costs and benefits, which treats individual rights as collective goods.28 Such a postulate directly founds the rights–based theory, according to which the principles, together with the rights and the freedoms they express, have a deontological functioning, from an anti-utilitarian point of view, beyond ethical-political preferences recognised by laws.
Although this perspective exerted a remarkable influence in Europe too, in continental theories, where the attention to social rights prevails in particular, a different awareness is proposed. Considering principles as a mere anti-utilitarian bank would deprive liberties and rights of their inner value. Hart, way before the affirmation of the neo-constitutional model, had already warned against the danger of regarding rights as opposed to collective purposes.29 Following these views, goal–based