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Mandatory Norms: Principles and Rules

  • Manuel Atienza
  • Juan Ruiz Manero
Part of the Law and Philosophy Library book series (LAPS, volume 34)

Abstract

The discussion about principles in recent legal theory started with a now famous article by Ronald Dworkin, published in 1967 under the title ‘Is Law a System of Rules?’ (later included as ch. 2 in Dworkin 1978). As most readers will know, the fundamental purpose of that article was what Dworkin himself called an “attack” on legal positivism, and especially on the “powerful form” it has found in H. L. A. Hart’s legal theory. According to Dworkin, one of the main drawbacks of that theory is that it cannot account for the presence in the law of standards other than rules, namely, of principles. This also makes it impossible for Hart’s construction to comprehend essential aspects of legal reasoning in so-called hard cases. According to Dworkin, rules and principles differ in the following way: “Both sets of standards point to particular decisions about legal obligation in particular circumstances, but they differ in the character of the direction they give. Rules are applicable in an all-or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision […] But this is not the way […] principles […] work. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met […] Principles have a dimension that rules do not — the dimension of weight or importance. When principles intersect […] one who must resolve the conflict has to take into account the relative weight of each […] Rules do not have this dimension.” (Dworkin 1978, 24 ff.)

Keywords

Strict Sense Legal Order Legal Norm Civil Code Legal Reasoning 
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References

  1. 1.
    Principles could be said to be ‘categorical norms’ in the sense of von Wright, that is, norms whose “condition of application is the condition which must be satisfied if there is going to be an opportunity for doing the thing which is its content, and no further condition” (von Wright 1963, 74). Art. 14 of the Spanish Constitution prohibits prima facie to discriminate on grounds of birth, race, sex, etc., whenever there is an opportunity for discriminating on such grounds; that prima facie prohibition gives way only if with respect to the case at hand another principle applies which counteracts the former and which, in the case in question, has higher weight (or, if you like, if the reasons in favor of unequal treatment deriving from some other principle have more weight than the reason given by the principle of equal treatment). Rules, in contrast, are intended to preclude deliberation; by correlating their normative solution with conditions of application (or generic cases) consisting in properties that are independent of the reasons speaking for or against that normative solution, they claim to impose obligations or prohibitions not merely prima facie, but all things considered, for all cases where those conditions of application obtain (or which can be subsumed under the respective generic case). However, as we will see later, the scope of this claim seems to be restricted by the possibility that in some cases, the application of a rule may come into conflict with a principle that, with respect to the relevant properties of the case, has greater weight than the principle(s) sustaining that rule. On this question, see infra, ch. I, 3.2.2.1., and the Appendix to ch. I, 1.1., point 4.Google Scholar
  2. 2.
    On the other hand, it seems clear that the conduct of judicial organs as such in general is not guided by end norms, but by action norms (although there are examples — like the one mentioned before — of end rules addressed to a judicial organ as such). But in any case, judicial organs should control the compliance with end rules by their addressees, among them especially administrative organs. For that control, they must take into account the regulated character of the state of affairs appearing in the consequent of the end rule, as well as the discretional character of the choice of the means to reach that state of affairs. As readers may have noticed, the distinction between action rules and end rules as it has been sketched here is indebted to Niklas Luhmann’s distinction between the “conditional” and the “purposive” programming of decisions (cf. Luhmann 1974). An application to the problem of administrative discretion (and its judicial control) can be found in Atienza (1995).Google Scholar
  3. 4.
    As can be seen, we use the expression ‘objective interests’ in what could be called a minimal sense: we do not refer to something an agent simply should be interested in, but to something he should be interested in — although he actually isn’t — in the light of his ultimate subjective interests. For a critique of other, stronger concepts of the term ‘objective interests’ cf. Bayón 1991a, 114 ff. In general, with respect to the notion of ‘interest’ and, later, also of ‘value’, we somewhat freely follow Bayón.Google Scholar
  4. 1.
    That paper has now become the first chapter of the present book. A first version of it was published under the title ‘On principles and rules’ in Doxa 10, and discussed in a seminar on current problems of legal theory in the United States and Spain, held at the Centro de Estudios Constitucionales in Madrid in June 1991. An expanded later version under the title ‘Three Approaches to Legal Principles’ was presented in 1992 at the II Spanish-Finnish Seminar on Legal Theory and published in Italian (‘Tre approcci ai principi di diritto’) in the 1993 volume of Analisi e diritto.Google Scholar
  5. 2.
    A first version of our reply to Prieto was published in Doxa 12; to this, Prieto has, in turn, replied in the following issue of the same journal (cf. Prieto 1993).Google Scholar
  6. 3.
    Cf. on this point Atienza 1986.Google Scholar
  7. 4.
    We believe that a similar position (although expressed in a different terminology) can be found in the three theories of rules that are probably most influential today: those of Raz, Regan and Schauer. Thus, we do not believe that Raz means something very different when he writes that “rules are, metaphorically speaking, expressions of compromises, of judgements about the outcome of conflicts. Here talk of exceptions comes into its own. Characteristically, cases are’ simply’ outside the scope of the rule if the main reasons which support the rule do not apply to such cases. Cases fall under an exception to the rule when some of the main reasons for the rule apply to them, but the ‘compromise reflected in the rule’ deems other, conflicting reasons to prevail” (Raz 1990, 187). Similarly, Donald Regan observes that rules must be regarded as neither absolutely transparent nor absolutely opaque. A rule would be treated as ‘absolutely transparent’ if one would think that one should do what the rule commands only when one is completely sure. after weighing all the reasons that apply in the case in question, that that is in fact the correct action. A rule would be treated as ‘absolutely opaque’ if one would think that one should always, whatever the reasons applying to the case at hand, do what the rule commands (Regan 1989, 1004-1013). As Juan Carlos Bayón has remarked, it is clear that treating a rule as absolutely transparent would make it superfluous as an instrument for decision-making, whereas treating it as absolutely opaque would certainly be irrational (Bayón 1991b, 51 f.). Finally, another thesis in the same direction is sustained by Frederick Schauer. He points out that a central feature of rules is the circumstance that they are potentially under-inclusive or overinclusive with respect to the underlying reasons, that is, there may be cases that are not included, though they should be, and others which, in turn, should not be, but are included (Schauer 1991).Google Scholar
  8. 5.
    Among those who have sustained such a conception of principles, Prieto names his own work (Prieto 1985) and that of J. Ruiz Manero (1990).Google Scholar
  9. 6.
    On the connexion between principles and values, cf. below, ch. V.Google Scholar
  10. 7.
    Ch. I, 3.2.1.Google Scholar

Copyright information

© Springer Science+Business Media New York 1998

Authors and Affiliations

  • Manuel Atienza
    • 1
  • Juan Ruiz Manero
    • 1
  1. 1.Universiy of AlicanteAlicanteSpain

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