The discussion about principles in contemporary legal theory: How it all started

The discussion about principles in recent legal theory started with a now famous article by Ronald Dworkin, published in 1967 under the title 'Is Law a System of Rules?' (later included as ch.

"Both sets of standards point to particular decisions about legal obligation in particular circum­stances, but they differ in the character of the direction they give. Rules are applicable in an all- or-nothing fashion. If the facts a rule stipulates are given, then either the rule is valid, in which case the answer it supplies must be accepted, or it is not, in which case it contributes nothing to the decision [...] But this is not the way [...] principles [...] work. Even those which look most like rules do not set out legal consequences that follow automatically when the conditions provided are met [...] Principles have a dimension that rules do not — the dimension of weight or im­portance. When principles intersect [...] one who must resolve the conflict has to take into ac­count the relative weight of each [...] Rules do not have this dimension." (Dworkin 1978, 24 ff.)

As an example for his thesis, Dworkin invokes a case — Riggs v. Palmer — that had to be decided by a New York court towards the end of the last century.

a) According to Dworkin, if a rule is valid, and if the facts it stipulates are given, then the application of the rule directly solves the case. But in Riggs v. Palmer the court did not question the validity of the applicable provisions on inheritance; rather, it held that with respect to the circumstances of the case at hand, the principle of Nemine dolus suus prodesse debet should prevail over the principle that what is prescribed by legal rules ought to be done.

b) According to Dworkin, principles alone never completely determine the content of a particular decision; but in the case he invokes, it seems that, once the court determined the prevalence of the principle prohibiting to take advantage of one's own crime, that principle became the only and complete foundation of the decision.

However this may be, Dworkin's theses on principles, later expanded into the global conception of law to be found in Law's Empire (Dworkin 1986), have been among the most significant stimulants of the discussion in legal theory and philosophy of recent years, leaving their marks on such central topics of those disciplines as the relationship between morality and law, the typology of legal provisions, the characterization of hard cases, the judicial creation of law, the character and structure of justificatory legal reasoning, etc. Our purpose in this chapter, however, is not to report on and participate in that debate, or to show our agreement or disagreement with its main protagonists. Although we will freely use some of the elements brought up in the course of that debate, our aim is to construct a first step of a theory of legal sentences, using as our starting point the distinction between rules and principles (and between all the other subspecies we think should be distinguished within each one of the two species). In our view, with respect to each and every type of sentence, such a theory should clarify the following: First of all, what are its structural cha­racteristics? Second, what kind of reason for action does it provide? And third, how does it relate to the interests and power relations existing in a society?

1.2.