1. Introduction

In the previous chapters we have repeatedly mentioned values. For instance, when we examined principles we said that principles in the strict sense imply the assumption of "values regarded as categorical reasons with respect to any interest".

Also, when we analyzed the question of permission, we reached the con­clusion that sentences expressing constitutional freedoms are not equivalent to the sum of prohibitions of interference and optimization mandates that can be derived from them; rather, they are located on a higher justificatory level. Such sentences also express, we said, the value judgment serving as the foundation for the corresponding principles and policies. Only if seen in this light, the justificatory role and the special expansive force constitutional freedoms have in legal discourse can be explained. From this, of course, it does not follow that that important role of value judgments is confined to provisions expressing constitutional freedoms and does not also cover those directly expressing man­datory principles. Our thesis, which was more or less implicit, and which we will try to explain and develop later, is that principles — and also, in different senses, the other norms of a legal order — not only contain a directive (or normative, in the strict sense), but also an evaluative element.

As will be seen in ch. V, this is also true with respect to the rule of recog­nition which, besides providing a theoretical criterion for the identification of legal norms, has two practical dimensions: as a guide for behaviour (especially the behaviour consisting in the making of legal decisions) and as a criterion for evaluation (again, especially of such decisions).

Now, in the earlier examples, the reference to value judgments is not contained in the sentences that make up a legal system; they appear when — from the perspective of legal theory — one either tries to elucidate or explicate their meaning (in the case of sentences expressing mandatory principles in the strict sense, policies or constitutional freedoms) or to explain the operation of the 'master norm' — the rule of recognition — that gives us the criterion by which to determine which sentences belong to some legal system. However, in the language of the legislator one can find examples of sentences explicitly and directly expressing value judgments. This is often the case — indeed, it is prob­ably inevitable — when one looks at the "statement of purposes" of a law. And it is also not uncommon, although less frequent, in the articles of statutes. An interesting example of the latter is article 1.1 of the Spanish Constitution: "Spain is constituted as a social and democratic State under the rule of law, de­claring as the highest values of its legal order liberty, justice, equality and poli­tical pluralism." Besides, reference to value judgments — or, simply, to values — abounds in legal language, especially when it comes to grounding a decision in those hard cases that are difficult because their solution requires a balancing of different values (for example, liberty and security; honour and freedom of expression; life and personal autonomy, etc.); and also — not surprisingly — in the language of legal dogmatics, especially those constructed over those parts of the legal order where the values regarded as the most basic ones of a society have the greatest impact. Thus, in the dogmatics of criminal law, for some time now there has been a dispute between two positions about the conception of criminal norms: as a imperatives, or as value judgments. We will look at this dispute somewhat more closely now.