2. Principles and full compliance

Though their positions differ, Prieto and Peczenik agree in rejecting our thesis that principles in the strict sense, as opposed to policies, do not permit compliance in degrees.

2.1. Prieto's position

Under the heading 'Normative characterization of principles', Prieto opposes the idea — based on some suggestions by Dworkin — that principles are never sufficient reasons for decision, that they "can guide an uncertain normative in­terpretation, but can never by themselves offer the solution of a case" since "they neither offer nor refrain from offering a categorical answer but rather 'control' (by expanding or restricting them) the solutions deduced from the entire set of norms".^[12] "I think", Prieto writes, "that this is an acceptable inter­pretation of Dworkin's words, but that it is also probably a wrong opinion." In order to argue why this opinion is wrong, Prieto invokes the jurisprudence of the Spanish Constitutional Court as well as Dworkin's own examples. As for the first, he reminds us that the Constitutional Court has declared that, when­ever there is an irreducible opposition between statutes and (constitutional) principles, the principles share the derogative force of the Constitution, which means that "at least in certain cases a principle represents the only foundation of a decision", this being so when the Constitutional Court declares a legisla­tive provision unconstitutional because it violates a constitutional principle. And as for Dworkin's famous example which Carrio has called "the case of the grandson in a hurry", Prieto writes that "if, according to New York law, descen­dants inherit from their elders and no rule excludes the case of the grandson who murders his grandfather, then this means that if a court denies that conse­quence in the name of the principle nemine dolus suus prodesse debet, that principle is the only foundation of its decision; one cannot say that the principle has been taken into account in order to tip the balance in favor of one or the other normative solution — both of them supported by rules — since there are only two solutions here: the (only) one that should be adopted if the rules are respected, and the other one imposed by principles."

Up to this point, we totally agree with Prieto.

"[T]he idea of the mandate of optimization [...] also does not seem to serve the purpose of distin­guishing principles in the strict sense from policies, as Atienza and Ruiz Manero sustain, because when there is a conflict principles too can be optimized; maybe one could say that policies naturally lead to mandates of optimization, but that does not imply that this technique is totally excluded from principles in the strict sense. I will try to explain this with an example. Imagine a clause in a will where a father imposes as a condition for his son to be given possession of his in­heritance (the legal and the free portion) that he must divorce his wife who is Jewish. To solve the case, the judge must keep in mind two principles: that of equality, prohibiting discrimination on religious or racial grounds; and that of autonomy of the will which protects the intentions of the testator. Now, it would not be strange at all if in this case the idea of optimization were simp­ly discarded and full preference were given either to the principle of equality or — which I think would be the worse solution — to that of autonomy of the will; but it would also not be sur­prising if a judge were to balance the two principles and say that the will is null with respect to the legal portion, and valid with respect to the portion the testator could freely dispose of.

[...] It is undoubtedly true that gradual compliance with some standards and judgments of opti­mization are ideas that can be found in legal reasoning, but it may be premature to say that prin­ciples always command that something be done to the highest possible degree. As the Constitu­tional Court has declared, 'the Constitution is a frame of reference sufficiently broad for political options of very diverse kinds to be able to fit under it', and without any doubt the programs of those options can contain different ideas about the degree to which constitutional principles or policies should be achieved. Therefore, from the perspective of the judge, we should speak not so much of a judgment of optimization as of a judgment of reasonableness which, accepting the idea of compliance in degrees, indicates the level of compliance or satisfaction below which some norm or policy becomes intolerable."

Prieto himself has developed this last idea further in his article 'Notes on con­stitutional interpretation' (1991). There, under the heading of 'Some peculi­arities of constitutional justice', he writes:

"The difference between legal and constitutional interpretation lies not only in the peculiarities of its object, but also in the function generally attributed to the organs in charge of it. With respect to this, one of the characteristics of the ordinary judge is what could be called the 'unity of a just solution', that is, the institutional requirement that each particular case only have one right solu­tion, whereas the task of constitutional justice is to indicate what interpretations cannot be tole­rated, rather than to stipulate the 'best' or 'only' possible answer. [...] This different function [...] also contributes to understanding the responsibility of the decision in another way. Thus, al­though it is, of course, a fiction, the ordinary judge can 'blame' the sense of the decision on the legislator [...] In contrast, the constitutional interpreter does not really look for a solution to the case, but for the contours of an area of legal permission within which other legal operators will adopt a solution in accordance with political (legislator) or legal (judge) criteria; thus, his way of reasoning must not be adjusted to the canons of subsumption, but to those of reasonableness [...] In other words, the kind of reasoning of an ordinary judge implies that the decision is conceived 'as if it came from the legislator, whereas the pattern of reasoning of a constitutional judge who must define the — more or less wide — range of what is permitted requires that the interpreter take on greater responsibility for the decision.

In our view, what is wrong with all those considerations about understanding constitutional jurisdiction is something that has to do with the — in our opin­ion, mistaken — way in which Prieto understands the role of principles in the reasoning of judicial organs. Stated briefly, the mistake is basically that Prieto presents as peculiar characteristics of constitutional justice what, in fact, are characteristics of any exercise of the judicial function where what is judged are acts constituting an exercise of normative powers granting the powerholder a margin of discretion. Let us look at this somewhat more closely. Prieto says that "the task of constitutional justice is to indicate what interpretations cannot be tolerated, rather than to stipulate the 'best' or 'only' possible answer. [...] The constitutional interpreter does not really look for a solution to the case, but for the contours of an area of legal permission [...]; thus, his way of reasoning must not be adjusted to the canons of subsumption, but to those of reasonableness". Of course, it is not the task of constitutional justice to spell out what is, from the point of view of the Constitution, the best possible statute; but it also is not the task of a judge at a court for administrative law to spell out what is the best possible regulation, from the perspective of the statute such a regulation de­velops, nor is it the task of a judge for lawsuits under civil law to determine which is the best possible contract or will from the perspective of the Civil Code.

According to Prieto's reconstruction, the judge in that case could decide on one of three solutions: to regard the will as null, which would mean to give "full preference to the principle of equality"; to regard the will as entirely valid, which would mean to give full preference to the principle of autonomy of will; or to regard the will as null with respect to the legal part, and valid with respect to the part of free disposition, which would mean that the judge tries to "bal­ance the two principles." In our view, this reconstruction is wrong. Rather, as we see it, things are as follows: The principle of autonomy of will and the prin­ciple of equality come into conflict only with respect to the part of free dispo­sition. With respect to the legal part, the case is covered by the rule that descendants can only be deprived of their part for certain reasons, to which be­ing married to a person of the Jewish faith does not belong. That rule can be seen as an expression of the prevalence — laid down by the legislator with re­spect to part of an inheritance — of the principle of protection of the interests of descendants over the principle of respect for the autonomy of the will of the testator. So, unless one argues (as Prieto does not) that the rank order of prin­ciples expressed in the rule about the legal part of an inheritance clashes, in the case at hand, with some other principle, with respect to the legal part the case is an easy case, because the application of a rule whose generic conditions of ap­plication completely cover the specific circumstances of the case can hardly be objected. Things are different, though, with respect to the part of free disposi­tion. And this is so because, in contrast to the legal part, here there is no rule that would determine the prevalence between the principle of autonomy of will and some other possibly conflicting principle (in our case, the principle of equality). This, precisely, is the reason why the judge must balance the two principles, that is, construct a rule that stipulates such prevalence. But here, we have two and only two possibilities: either the principle of autonomy of the will prevails (and the corresponding clauses in the will therefore are valid), or the principle of equality prevails (and those clauses are null). In other words: once the prevalence of one of the two principles is established, full compliance is re­quired, that is, the corresponding clauses in the will must be declared either valid or null. Tertium non datur.

2.2. Peczenik's position

Peczenik offers two arguments in defence of Alexy's conception of principles as mandates of optimization and against our thesis that principles in the strict sense require full compliance. The first one is that the example of a principle in the strict sense which we used to illustrate our thesis (art. 14 of the Spanish Constitution) is not well chosen, because that provision does not express a principle in Alexy's sense:

"[T]he example does not refute Alexy's theory, since art. 14 of the Spanish Constitution is a (vague) rule and not a principle in Alexy's sense. Besides, provisions such as Ch. 1 Sec. 2 of the Swedish Constitution, which are principles in that sense, can be complied with in different de­grees." (Peczenik 1992, 330)

Actually, it is not easy to reply to this argument. This is so because, first of all, Peczenik does not explain why art. 14 of the Spanish Constitution is not a principle in Alexy's sense and what relevant differences there are, in that respect, between art. 14 of the Spanish Constitution and the provision of the Swedish Constitution he mentions. That provision stipulates that "public power must be exercised, respecting the equal value of all human beings, and the liberty and dignity of each individual person". Why should one agree with Pe­czenik that this provision expresses three principles — the equality, liberty and dignity of all individuals —, but deny that art. 14 of the Spanish Constitution expresses the principle of equality? In the provision of the Swedish Constitu­tion just quoted as well as in art. 14 of the Spanish Constitution, there is that 'one-to-one link' to the corresponding values which Peczenik considers charac­teristic of principles. And neither one of the two provisions determines its ge­neric conditions of application. So what is the difference between them that would allow us to hold that the first expresses three principles, and the second none? Besides, Peczenik asserts that the principles contained in the Swedish Constitution can be complied with in different degrees. But this assertion means that he takes for granted precisely what should be argued for: the possi­bility for each one of the three principles to be complied with by degree.

Peczenik's second argument in defence of Alexy's conception can be found in the next paragraph, where, after quoting our assertion that principles have greater 'expansive force' than rules, he writes:

"Without trying to explain the term 'expansive force', it can be pointed out that the main source of the justificatory force of principles consists in their one-to-one link to the corresponding values. Every principle corresponds to some value; it stipulates, for example, that equality, liberty and dignity are valuable. [...] A value can be defined as a criterion of evaluation. Each criterion can be satisfied to a greater or lesser degree [...] Each principle requires that the value it corresponds to should be respected as much as possible. But if that is so, then the possibility of complying with principles in different, greater or lesser, degrees is the most essential property of principles. And Alexy is right, whereas the critique of his theory by Atienza and Manero does not go deep enough." (Peczenik 1992,330)

We basically agree with Peczenik that what he calls their "one-to-one link to the corresponding values" is characteristic of principles in the strict sense.^[13] In fact, in our contribution we characterized principles in the strict sense in very similar terms. But from here, one cannot infer what Peczenik claims to infer. Of course, principles are criteria for the evaluation of behaviour. But it is simp­ly wrong to say that criteria of evaluation can always be satisfied in degrees. The best example against this can be found in those legal standards we have called rules and which, for those who accept them, are also criteria for the evaluation of actions. Now, it is undisputed that rules do not admit of compli­ance in degrees: very simply, they are either complied with or not complied with. The same is true, in our opinion, with principles in the strict sense; and in Peczenik we do not find reasons that would make us change our mind on this.

Finally, to conclude, just a few words about what we have called the 'expansive force' of principles and which, in fact, we have sketched only very roughly in the text.^[14] With respect to principles in the strict sense, their 'expan­sive force', for example, translates into the generation of rules that determine their prevalence (or non-prevalence) in some generic case. Let us return to Prie­to's example of the will. If the court that must judge the case determines the prevalence of the principle of equality (or, more precisely, the principle of the prohibition of discrimination on grounds of conscience) over that of autonomy of the will, that determination translates into the construction of a rule, as the foundation of its decision, stipulating that under certain generic conditions (the making of a will, the conclusion of some private legal act) it is prohibited to discriminate on grounds of conscience. And if the rationes decidendi of the court judging the case are binding for other judicial organs, that rule becomes a rule of the corresponding legal system.