Different meanings of 'legal principle'

It should not be forgotten that, although the discussion on legal principles in contemporary legal theory has its origin in Dworkin's work (and to a great ex­tent still concentrates on it), legal theory before Dworkin has not been totally void of reflections on legal principles.

a) 'Principle' in the sense of a very general norm, understood as a norm regulating a case whose relevant properties are very general. For example, art. 1091 of the Spanish Civil Code, which stipulates that "Obligations arising from contracts have legal force between the contracting parties and must be com­plied with as contracted". It hardly needs to be said that the property of being general is a relative matter and can come in degrees: the norm (or principle) just mentioned is more general than those applying exclusively to contracts of lease (e. g., art. 1545 of the Spanish Civil Code: "Commodities which are con­sumed in their use cannot be the object of such a contract"), and less general than those applying to contracts as well as other acts-in-the-law (for instance, art. 11.1 of the Spanish Civil Code: "The forms and formalities of contracts, wills, and other acts-in-the-law shall be regulated by the law of the country in which they are celebrated").

b) 'Principle' in the sense of a norm clad in particularly vague terms — like art. 7, para. 2 of the Spanish Civil Code: "The law does not protect the ab­use or anti-social exercise of a right". There are, of course, many norms that are vague in the sense that in the description of the generic case (or legal facts) we find terms with an open-textured periphery: Most ordinary cases clearly fall inside or outside of a norm, but there are also (exceptional) situations where it is doubtful whether or not a norm applies. The example given, however, points to another kind of vagueness that is produced when one uses what legal theo­rists call indeterminate legal concepts, i. e., terms (such as "abuse of a right") which not only have an open-textured periphery but also a vague core. Here too, we can find cases clearly covered by, or clearly falling outside of, the norm in question; but the great majority of real cases requires specification, that is, a weighing of relevant factors whose identity and possible combinations cannot be anticipated.

c) 'Principle' in the sense of a program norm or policy, that is, a norm stipulating the obligation of pursuing certain ends. For example, art. 51.1 of the Spanish Constitution: "The powers of the state shall guarantee the defence of consumers and users, protecting their security, health and legitimate economic interests through effective procedures".

d) 'Principle' in the sense of a norm expressing the highest values of a legal order (reflecting a certain way of life), or of a part of it, of an institution, etc. For example, art. 14 of the Spanish Constitution: "All Spaniards are equal before the law; there shall be no discrimination on grounds of birth, race, sex, religion, opinion or any other condition or personal or social circumstance".

e) 'Principle' in the sense of a norm directed at the organs entrusted with the application of the law, and indicating how the applicable norm must generally be selected, interpreted, etc. An example of such a principle could be art. 4, para. 2 of the Spanish Civil Code: "Criminal laws, laws of exception and temporally restricted laws shall not be applied to other facts, nor at other times, than those explicitly stated in them".

f) 'Principle' in the sense of regula juris, that is, a sentence or maxim of legal science with a high degree of generality, permitting the systematization of the legal order or a sector thereof. Such principles may or may not be incor­porated into positive law. An example of the former (at least in Spanish law) is the principle of normative hierarchy (art. 9.3 of the Spanish Constitution); and of the latter, the principle of the rational legislator which, though not explicitly formulated in our law, is often used by academic and practicing lawyers, e. g., in order to sustain that a norm ought to be interpreted in some specific way (alleging that only if it is interpreted in this way one could say that the legis­lator followed some rational purpose in issuing that norm).

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