Previous versions of our paper on legal principles have been subjected to a number of criticisms, most of them expressed orally in several seminars where we had the chance to discuss our ideas.1
At one of these seminars, the II Spanish-Finnish Seminar on Legal Theory held in Tampere in September 1992, Aleksander Peczenik presented a paper (Peczenik 1992) that turned out to be a global critique of our conception of legal principles.
This is also the case with the first chapter of Luis Prieto San- chfs' book on principles in law (Prieto 1992),[8] [9] although, of course, his discussion is not limited to the critique of our theses, and includes all the different conceptions of legal principles to be found in contemporary legal philosophy.We will try to reply to both critics. It should be noted at the beginning that both Peczenik and Prieto criticize the central pillars of our contribution, and that in their texts — with obvious differences of emphasis — we can also find the basic tenets of the critiques voiced in oral discussions by other legal philosophers. Thus, trying to answer to their objections will be an excellent testing ground for us.
As we understand it, the core of Prieto's and Peczenik's critiques can be divided into the following two points: a) one refers to our understanding of mandatory legal rules (action rules or end rules) as peremptory reasons and to our idea that such rules differ from principles in the strict sense in that the former present cases in 'closed' form while the latter present them in 'open' form; b) the other refers to our conception of principles in the strict sense as norms requiring full compliance, that is, norms that do not allow compliance by degree. One could think that a) contains at least two different questions, but we believe that in our presentation as well as in the critiques by Prieto and Peczenik we are dealing rather with two different aspects of one and the same question, because the fact that rules can function as peremptory reasons implies, as a necessary condition, that they determine their conditions of application in 'closed' form.
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More on the topic Previous versions of our paper on legal principles have been subjected to a number of criticisms, most of them expressed orally in several seminars where we had the chance to discuss our ideas.1:
- Principles in legal reasoning
- Principles in legal explanations
- The discussion about principles in contemporary legal theory: How it all started
- Although it sounds innocent enough - putting legal doctrines, personalities and ideas in historical context - the conclusion is less ‘thought you'd like to know' than ‘this matters'. Contextual histories aim volleys at the field's commanding height
- Besides these internal distinctions, principles must also be distinguished, so to speak, externally, from other standards of behaviour that can be part of a legal system.
- The Ideas behind the Quasi Categories
- As previous chapters have demonstrated, ‘the state’ is an elusive and contested concept.
- Principles and rules as reasons for action
- As we saw, the man who really ‘‘invented” the state was Thomas Hobbes. From his time up to the present, one of its most important functions - as of all previous forms of political organization - had been to wage war against others of its kind.
- Ideas in Action: The International Community and International Statebuilding
- There are two purposes to this chapter. Having formulated in the previous chapter an understanding of the types of cases that advocates accepted, we now must consider the impact that such an undertaking had on an advocate’s life