Principles, rules, powers, and interests
In order to explain how the concepts of power and interest can help elucidate the concept of legal principles, it may be useful to begin by looking at those two rather problematic concepts.
2.3.1. With good reason, the concept of 'power' has been considered a paradigmatic example of an 'essentially contested' concept. However, as Steven Lukes has shown by introducing a distinction similar to that of Rawls (1971) between the concept and conceptions of justice, it is not so much the concept that is contested as the diverse conceptions of, or approaches to, power. Thus, one can formulate a concept of power underlying all or at least most conceptions of power to be found in the social sciences. According to Lukes, that concept underlying the diverse conceptions of power can be defined as follows: "A exercises power over B when A affects B in a manner contrary to B’s interests" (Lukes 1974, 27).
Now, for two reasons, that concept is still too narrow for our purpose: first of all, because we are not only interested in the exercise of power, but also in having power as such; and secondly, because we are interested in a notion of power that does not exclude cases where the interests of others are not affected negatively. Therefore, our definition will be this one: "A has power over B when A has the ability to affect B's interests". That definition — or, if you wish, that concept of power — can be interpreted in different ways: it can give rise to different conceptions of power. Of these, the most general — and the one we will adopt — is characterized by the understanding that J) A and B can be individuals as well as groups, i. e., social classes, pressure groups, and so on; 2) in order to 'have the ability' it suffices, on the one hand, that B believes A to have it, although in fact this is not so, and, on the other, A can have the ability without knowing or being aware of it; 3) A's ability to affect B’s interests may be either negative (that is, the power to harm B’s interests) or positive (a power exercised to the benefit of someone else — e.
g., a father's power over a child, provided it is used correctly — also is power), and that 4) this may concern subjective as well as real or objective interests of B. By the latter, we understand those interests B is not aware of, but which it is reasonable to assume she would perceive to be her interests — on the basis of what B herself considers to be her ultimate interests — if she did possess the relevant information about the pertinent causal relations.[6] What we have now is a concept of power that is very wide but which connects that notion in an essential way to that of interest: power is a kind of relation where the participating subjects are in a situation of inequality in the sense that some can affect the interests of others.2.3.2. Generally, there are a number of different ways in which legal norms are linked to interests and power. As has already been said, on the one hand, they are the effect of interests and power relations; on the other, they legally shape power relations; and finally, the exercise of those powers has the effect of bringing about changes in the power relations and interests existing in a society. Right now, we are interested in the second of those linkages between norms and power. Here, what is important is that, with respect to legal norms, not only does power appear at the time of their stipulation or application: legal norms themselves also shape a power structure, i. e., they confer on certain individuals or groups the ability to affect the interests of other individuals or groups.
A minimal justification of the existence of a legal order as such lies in the fact that individuals and groups have interests whose mutual reconciliation cannot be expected to arise spontaneously in social life. In other words, without the existence of legal norms social life would be impossible, or at least extremely costly. Now, that function of the reconciliation — or normativization
— of interests can obviously be fulfilled in different ways.
2.3.2.1. One of them is to proceed through legal provisions enabling their addressees to develop their plans of life without having to think about how their actions may affect the interests of other social subjects in each single case. This is typical of those legal norms we have called 'action rules', and especially those belonging to what, following Alchourron and Bulygin, we have called the 'system of the subject' (and which, besides, according to the 'system of the judge', form part of the criterion on which judges must base their evaluations of the conduct of 'subjects'). Such rules make constant weighing and deliberating unnecessary, by imposing restrictions on everyone's pursuit of his own interests (rules imposing positive or negative duties) and by guaranteeing a sphere of non-interference by other social subjects for that pursuit (permissive rules indirectly imposing prohibitions of interference on others).
2.3.2.2. This way of operating, however, is inadequate when one sees the law
— norms — as having not only the function of delimiting the area within which everyone may pursue his or her own interests, but also that of actively promoting certain social interests. For this purpose, action rules are not sufficient; end rules and policies must be stipulated, and they typically treat interests in a different way. But the difference is not that this second kind of norms, in contrast to the first, does not suppose the existence of conflicts of interests (neither end rules nor policies are technical norms presupposing that ends are given, such that the only problem, therefore, is that of the best means to reach those ends). The difference, rather, is that end rules, and especially policies, do not ex ante limit the articulation of conflicting interests — nor, in the case of policies, of at least relatively incompatible objectives; rather, in every single case they require deliberation on those interests in order to establish their relative weights.
Policies, we can say, do not determine spheres of power once and for all, irrespective of the interests actually present in each particular case — as action rules do. They make that determination depend on circumstances that are variable and cannot be determined a priori, that is, circumstances not contained in the norms.2.3.2.3. Finally, legal orders impose restrictions on the pursuit of interests by the different social subjects by incorporating values regarded as categorical reasons with respect to any interest. That is why — as has already been said — the norms transporting those values — i. e., principles in the strict sense — have precedence over policies and mainly play a negative role: principles in the strict sense neither intend to regulate the clash of interests, nor to promote any specific interest; rather, they try to prevent that the pursuit of any interest may harm those values. Obviously, that those values are considered categorical reasons against all interests does not preclude that they may themselves come into conflict. At least liberal-democratic legal orders contain a host of values whose internal rank order is not always predetermined by the legal order itself. There is, thus, a possibility of conflict that can only be resolved by deliberation on which value, in view of the circumstances of the case, has the higher weight.
2.3.3. What has just been said should suffice to elucidate, from that third perspective of norms, the difference between rules and principles as well as between the two kinds of principles distinguished above, i. e., policies and principles in the strict sense. Now, we must ask whether this kind of analysis can also be used with the other distinctions made earlier, concerning legal principles.
2.3.3.1. As for the distinction between explicit and implicit principles, possibly the most interesting question to consider from this perspective is whether implicit principles (regardless of whether they are policies or principles in the strict sense) are connected with the hidden prevalence of certain interests and values in a legal order, or with the equally hidden incorporation of certain power relations in it (irrespective of whether those who issue or accept the norms are aware of it).
In our view, such a connection exists sometimes, but not always. In other words, that the principles in a legal system are not always clearly stated is due, in part, to technical reasons arising from the very nature of principles: on the one hand, social dynamics constantly cause new objectives and purposes to arise that could not be foreseen by the norm-creating organs; on the other, principles depend on rules and are, at the same time, strongly interdependent among themselves; thus, the modification of rules or explicit principles constantly creates new implicit principles; and finally, at least some of what we have called principles in the strict sense rest on what could be called the 'forms of life' of a society which, as everyone knows, are not easily identified in all their contours. But, in any case, to bring to light — reveal — the implicit principles of a legal order is, in our opinion, one of the central purposes of an ideological analysis of the law; the other one is to show the contradictory — or potentially contradictory — nature of the set of principles constituting a modem legal order.2.3.3.2. With respect to the distinction between principles in the context of the primary system and principles in the context of the secondary system, what should probably be emphasized most from the perspective from which we are looking at norms right now is that, because of the special properties of principles, as opposed to rules, the former give to the law-applying organs a power (an ability to — positively or negatively — affect the interests of subjects) far greater than that given by rules. Therefore, the rising importance of principles in legal orders — as has often been observed — brings with it a progressive judicialization of the law.
More on the topic Principles, rules, powers, and interests:
- 3.4. Power-conferring rules, non-normative powers, and interests
- After having treated, in the first two chapters, the problems of mandatory norms — rules and principles — and of power-conferring rules, purely constitutive rules and definitions, we will now set out to examine permissive sentences.
- Principles and rules as reasons for action
- 2. Principles and rules
- Chapter I Mandatory Norms: Principles and Rules
- Mandatory rules as peremptory reasons and principles as non- peremptory reasons; the 'closed' or 'open' configuration of the conditions of application
- 2.2. Second exclusion: Power-conferring rules cannot adequately be understood in terms of definitions, conceptual rules, or qualifying dispositions
- 2.2. Permission and the exercise of normative powers
- The separation of powers
- Security and the Division of Powers in Federations
- CHAPTER XVI. SPECIAL CASES {amt.). S. COMMUNIS. COMBINATIONS OF DIFFERENT INTERESTS.
- Principles in legal reasoning
- Morality is a subject that interests us above all others: we fancy the peace of society to be at stake in every decision concerning it;
- Governance is shorthand for the pursuit of collective interests and the steering and coordination of society.
- Principles in legal explanations