Principles and rules as reasons for action

The second way of understanding norms — as reasons for action — is probably more illuminating than the previous one when it comes to principles. In order to make analysis easier, we will begin by considering only principles in the context of the secondary system, that is, principles as standards directed at norm-authorities and, more specifically, at judicial organs, understood in a wide sense (what Raz calls 'primary organs'), i.

2.2.1. Now, in this context, the distinction — and the relationships — between rules, explicit principles and implicit principles can be better understood if seen from the perspective of the distinction — and the relationships — between obedience to norm-authorities and one's own deliberation, with respect to the law-guided behaviour of judicial organs.

2.2.1.1. We will start from a well-known characterization by the later Hart (1982a) and regard legal rules of action as peremptory and content-independent reasons for action. 'Peremptory reason' means the same as 'protected reason' (in Raz's terminology), that is, a first-order reason for performing the required ac­tion — in the context we are interested in: for issuing a decision whose content is in accordance with the rule — and a second-order reason "to preclude or cut off any independent deliberation by the hearer of the merits pro and con of do­ing the act" — that is, in our context, to preclude that the content of the deci­sion will be grounded on what the judicial organ, in view of the merits of the case, thinks would be the best solution.

End rules too are peremptory and content-independent reasons for bring­ing about the prescribed state of affairs. However, they show important differ­ences, as compared with action rules, in how they guide behaviour. Action rules simplify the decision process of those who should behave according to them (i. e., those who should comply, or control compliance, with them). They only need to determine whether or not certain conditions hold, in order to per­form or abstain from performing a certain action, irrespective of the consequen­ces, that is, of the causal process their behaviour will set in motion. End rules, in contrast, delegate the control of (or responsibility for) the consequences of their behaviour to the addressees themselves.^[4]

2.2.1.2. Of explicit principles we can say that they are content-independent, but not peremptory reasons for action. They are content-independent because the reason why they are reasons for the action of judicial organs, that is, the reason why they should be part of the justificatory reasoning for the decisions of judi­cial organs, is the same as in the case of rules, namely, that they have their ori­gin in a certain source. But they are not peremptory, because they are not in­tended to preclude deliberation by the competent judicial organ about the con­tent of the decision to be issued; rather, they are merely first-order reasons for deciding in a certain sense whose force as compared to that of other reasons (other principles) — which may, in turn, be reasons for deciding in another sense — must be weighed by the judicial organ itself.

2.2.1.3.

Thus, we can say that rules are authoritative reasons as much with re­spect to why they operate as with respect to how they operate in the justifica­tory reasoning of judicial organs; that explicit principles are authoritative rea­sons with respect to why they appear in such reasoning, but not with respect to how they operate in it; and that implicit principles are not authoritative with respect to their way of operating in such reasoning, and that as far as the reason for their presence is concerned, they are authoritative at best indirectly, insofar as their presence is based on their fit to rules and explicit principles.

2.2.2. When we now go from secondary principles to primary principles, that is, principles as standards addressed to the general public, there is no reason why the analysis should be very different from the former. The difference here seems to be rather that, in contrast to judicial organs, people in general — ex­cept in very special cases — do not need to justify their behaviour with regard to legal norms. But besides that, for those who accept them, rules operate as peremptory or protected reasons, whereas principles operate as first-order reasons that must be weighed against other reasons.

2.2.3. With respect to the distinction between principles in the strict sense and policies, we think that in terms of reasons for action the difference can be sketched as follows. Policies generate reasons for action of a utilitarian kind: The fact that it is desirable to attain some end E implies that, in principle, there is a reason in favor of whatever leads to that end; but the reason is not exclu­sionary, since there may be other, countervailing reasons of greater force. In contrast, reasons for action deriving from principles in the strict sense are right­ness reasons: like the former, they are not exclusionary; but in a subject's de­liberation, rightness reasons operate as ultimate reasons. Hence, utilitarian rea­sons deriving from policies can and should be evaluated (and, if appropriate, overruled) by rightness reasons based on principles, whereas the contrary can­not happen: if one has a rightness reason to do X, then not to do X can be justi­fied only by invoking other reasons of the same kind (i. e, principle-based reasons) with higher weight, but not by invoking (policy-based) utilitarian reasons showing that to attain a certain end is incompatible with action X.

On the other hand, by stipulating that performance of a certain behaviour is obligatory (or prohibited) in their consequent, principles in the strict sense allow their addressees to disregard the consequences of their actions. That means that once a principle has been determined as prevalent in a specific case, its addressee is in the situation of the addressee of an action rule: he should simply do what is prescribed, without having to pay any attention to the causal process the performance of that conduct will start. Policies, on the contrary, re­quire their addressees to deliberate on the adequacy of their behaviour (that is, of the means they employ) in view of the pursued end as well as in view of other ends whose pursuit also has been ordered and which may be negatively affected by the use of those means.^[5]

2.3.