Principles in legal reasoning

We will now turn to the justificatory dimension of legal principles, that is, in other words, to the role principles play in legal reasoning.

3.2.1. As a special kind of practical reasoning, legal reasoning is, of course, a complex activity that can entail elements of very different kinds.

Principles are less than rules in two senses. On the one hand, they do not have the advantage of rules, since they do not allow us to save time when we must decide a course of action. Because if a rule is accepted and it is applicable in a certain case, then one does not need to go through a process of weighing the reasons pro and con of a decision; a rule thus works like an element that reduces the complexity of the reasoning process. Principles, on the contrary, as we have seen, do not spare us the task of weighing. On the other hand, as pre­mises to be used in practical arguments, principles have less force (are less con­clusive) than rules. If someone accepts as a premise of an argument the rule "If X, then Y ought to be done", and also agrees that "X has occurred", then he must necessarily conclude that "Y ought to be done". But from the premise "E is an end to be reached to the highest possible degree" and the sentence that "D leads to E", we cannot reach the conclusion that "D ought to be done" (even if D is a behaviour that is not prohibited in the corresponding legal order), but only that "There is a reason for doing £)"; the same applies to the premises "C is a valua­ble kind of behaviour" and "c is an action of type C" which do not allow us to reach a stronger conclusion than "There is a reason for doing c".

But principles are also more than rules, and again, in two senses. On the one hand, this is so because, since they are — or can be— stated in more general terms, they also come into play in a greater number of situations; that means that just as they have more explanatory power than rules, they also have greater justificatory scope. On the other hand, the lesser force of principles as premises of practical arguments is accompanied by a greater expansive force. Thus, for example, from the premises "All able-bodied men shall perform military service" and "If you have surgery, you will become able-bodied" we cannot conclude that "You ought to have surgery", and not even that "There is a reason for you to have surgery" (because it is perfectly possible that one does not wish to do military service, and therefore this does not count as a reason for oneself). But from the principle that "All Spaniards have a right to decent housing" together with the statement that "When loans for houses become cheaper, more people will be able to afford decent housing" it is perfectly possible to conclude at least that "There is a reason for the state to make loans for buying houses cheaper".

3.2.2. What has just been said about the different ways in which rules and prin­ciples work in legal reasoning seems to apply to principles in general, that is, without taking into account the triple classification of principles we have been using before. So now we should see whether these distinctions are relevant — and if so, in what ways — with respect to legal reasoning too.

3.2.2.1. First of all, it seems that there must be a difference between primary and secondary principles, to the extent that this distinction is understood to re­fer to whether principles are used by the general public or by judicial organs (when principles are used by lawyers, legal theorists, etc., this can, for the pres­ent purpose, be counted as judicial reasoning too).

Sometimes it is assumed that principles come into play in the justifica­tory reasoning of judicial organs only when they are confronted with a hard case, because in easy cases rules would be necessary and sufficient elements for justifying a decision. However, we believe that this way of looking at things is untenable, for the following reason. A case is easy precisely when the sub­sumption of certain facts under some rule is incontrovertible in the light of the system of principles giving sense to the institution or normative sector in ques­tion. And that they 'give sense' to it can, as has already been noted, itself mean two different things: they can be the values realization of which is assured by compliance with the rule, or the social objectives for whose attainment compli­ance with the rule is a means. But, whatever the meaning of 'giving sense' may be, it is always in the light of the explicit or implicit principles of the normative sector in question that we must determine whether a case is easy or hard.

This has important consequences because it contradicts a widely held view about how the law guides the conduct of judicial organs. That view can be summarized as follows: the law guides that conduct primarily and essentially through action rules, that is, through peremptory reasons (reasons — to say it once again — for issuing a decision whose content is based on the rule, and for precluding acceptance of any other reason as a ground for the content of the decision), and it requires deliberation by judicial organs only in marginal cases produced either by the deficits of ordinary language (cases falling in the twi­light zone of the meaning of the terms used in the rule formulation) or by the relative indeterminacy of the legislator's purposes (cases of normative gaps and antinomies, as well as of judicial organs being given discretionary powers for resolving certain cases).

Now, if a case can be regarded as easy — i. e., subsumible under some rule that must be accepted as a peremptory reason for resolving the case — only by taking into account principles, then the dimension of obedience to per­emptory reasons can no longer appear as primary: obedience to such reasons requires prior deliberation and only takes place within the area thus delimited. The law, obviously, does not recognize any valid reason as a legitimate part of such deliberation: Except for some cases where it authorizes a judicial organ to invoke reasons other than those it contains itself, they must be reasons con­tained in the law itself, that is, explicit or implicit principles. Thus, we can speak of a normatively guided deliberation that also, if you wish, constitutes a kind of 'obedience', but — and this is the important part — which differs sub­stantially from the obedience consisting in following a peremptory reason.

All this can probably be summarized by saying that for judicial organs the law constitutes an exclusionary system on two levels and in two senses. In a first sense — and on a first level —, insofar as it imposes on the judicial organs the duty to find a balance of reasons, where only legal standards count as rea­sons and where other reasons may be taken into account only to the extent that the legal standards themselves allow this. In a second sense — and on a second level —, insofar as that balance of reasons in most, though not in all, cases req­uires the use of a legal rule, that is, a peremptory reason, as the basis for deci­sion. Thus, we can divide cases into two groups: those the solution of which is based on the balance of legal reasons that enter into a judicial organ's delibera­tion; and those where that balance of reasons requires to suspend deliberation and to adopt a peremptory reason as the basis of decision.^[7]

3.2.2.2.

3.2.2.3. Finally, with respect to the distinction between explicit and implicit principles, there can be no doubt that the latter imply a higher complexity than the former because they not only give rise to the question of how they should be used as premises of a legal argument, but also of how one can justify their adoption as such premises. In that sense, in our view, to say that "X is an im­plicit principle" of some institution, normative sector or legal system is the same as saying that the corresponding rules and explicit principles are con­sistent with X and that, when considered as linguistic formulations, they should be understood as having a propositional content that also is consistent with X. But, as is well-known, the requirement of consistency with the normative ma­terial often can be satisfied by principle X as well as by other principles. In that sense, the problem of identifying implicit legal principles coincides with the general problem of legal interpretation. And that is a problem which clearly exceeds the limits of our present work.

3.3.