Electronic copy available at: http://ssrn.com/abstract=1918421 Electronic copy available at: http://ssrn.

com/abstract=1918421
- 1 -
Andrs Jakab
*
: Concept and Function of Principles. A
Critique of Robert Alexy

1. What are Principles? ............................................................................................................... 1
1.1 Alexys Theory ................................................................................................................. 1
1.2 The Objection: Superfluous Concept ............................................................................... 3
1.3 Possible (Counter-)Objections against this Purely Rule-Based Paradigm ....................... 5
1.4 So What Are Principles? .................................................................................................. 7
2. How Can Principles Be Ascertained (Recognized)? .............................................................. 9
3. What Is the Function of Principles? ..................................................................................... 10
3.1 Heuristic Function .......................................................................................................... 10
3.2 Practical Legal Functions in Applying the Law ............................................................. 11
3.3 Meta-Normative Functions ............................................................................................ 13
3.4 Social Functions ............................................................................................................. 14

1. What are Principles?

In recent decades, various theories have postulated that principles have a structure distinct
from that of rules (or norms).
1
This contribution introduces and critically analyzes these
theories (esp. the one of Robert Alexy) in order to develop a new approach to the concept and
function of principles.
2
Its main thesis is that principles should not be conceived as
structurally different from rules; a principle means simply a very important rule, so the
differentiation is of rhetorical nature. This result does not deny, however, the existence of
special functions bound to principles. It simply wants to get rid of a superfluous common
place on the distinct logical structure of principles. It is superfluous because the phenomena
explained by it can also be otherwise (i.e. by the traditional rule paradigm) explained. Its
introduction, thus, only superfluously, unnecessarily complicates the explanation.

1.1 Alexys Theory

One of the most influential, German-language works on the problematic of principles is Josef
Essers book, Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts (1956).
3


*
Associate Professor, Pzmny Pter Catholic University, Department of Constitutional Law. E-mail:
jakabandr@gmail.com.
1
JOSEF ESSER, GRUNDSATZ UND NORM IN DER RICHTERLICHEN FORTBILDUNG DES PRIVATRECHTS [PRINCIPLE
AND NORM IN JUDICIAL DEVELOPMENT OF PRIVATE LAW] (1956); RONALD DWORKIN, TAKING RIGHTS
SERIOUSLY (1977); Robert Alexy, Zum Begriff des Rechtsprinzips [On the Concept of the Legal Principle],
1 RECHTSTHEORIE: BEIHEFT 59-87 (1979) [hereinafter Alexy, Zum Begriff]; ROBERT ALEXY, THEORIE DER
GRUNDRECHTE [THEORY OF FUNDAMENTAL RIGHTS] (1985) [hereinafter ALEXY, THEORIE]; Robert Alexy, Zur
Struktur der Rechtsprinzipien [On the Structure of Legal Principles], in REGELN, PRINZIPIEN UND ELEMENTE IM
SYSTEM DES RECHTS [RULES, PRINCIPLES, AND ELEMENTS IN THE LEGAL SYSTEM] 31-52 (Bernd Schilcher et al.
eds., 2000) [hereinafter Alexy, Zur Struktur].
2
I am very grateful to Matthias Goldmann, Tams Gyrfi, Stefan Huler and Grgoire Webber, further to the
participants of the Theory of Principles workshop at the XXIII World Congress of Philosophy of Law and Social
Philosophy in (IVR) in Cracw (Poland, 1-6. August 2007), esp. to Robert Alexy, Carsten Bcker, Mtys
Bdig, Martin Borowski, David Duarte and Jan-Reinard Sieckmann for their valuable criticism and comments.
3
Esser, supra note 2. As a predecessor to Esser, the Austrian Walter Wilburg comes to mind. Under elements,
he understood fundamental principles of a legal subject-matter or of a legal concept. Elements, according to
him, have a more-or-less structure and play an orienting and systemizing role. See WALTER WILBURG,
ELEMENTE DES SCHADENSRECHTS [ELEMENTS OF THE LAW ON DAMAGES] (1941); Walter Wilburg, Entwicklung
Electronic copy available at: http://ssrn.com/abstract=1918421 Electronic copy available at: http://ssrn.com/abstract=1918421
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As a point of origin, then, a similarly influential book in the Anglo-Saxon area, namely,
Ronald Dworkins Taking rights seriously (1977), may be instructive.
4


Both authors stress that, in a legal order, principles (Grundstze) and rules (Normen)
exhibit differing logical structures, not with a merely gradated differentiation but with strict
separation. What according to the authors is the difference between principles and rules? To
answer this question, we now turn to Robert Alexy, who elaborates on the distinction in more
theoretical detail and with more analytical sensitivity than Dworkin or Esser.
5
Another
advantage of choosing Alexy as the main target of my criticism is that he escapes of the
Dworkinian problems of moral and/or legal nature of principles. This aspect of the
Dworkinian principles theory has already been convincingly criticised.
6
But my point is
rather, whether there is a structural difference between legal principles and legal rules
something that has been accepted even by Dworkins critics.
7
I contest it. The strongest and
most sophisticated of the theories on legal principles seems to be Alexys, so we are going to
concentrate rather on it.

Alexy dismisses as unsound the Dworkinian criterion for distinction, which attributes
to rulesas opposed to principlesan all-or-nothing character and maintains that exceptions
can generally be listed out exhaustively.
8
Alexy asserts that both rules and principles have
exceptions which cannot be exhaustively listed. According to him rules only have an all-or-
nothing character when one assumes a proviso limiting application of the rules to cases when
no principle legally requires something else or when no legally essential reasons demand
something else. But the problem is that, in this sense, even principles have an all-or-nothing
character; thus, this distinguishing criterion can be dismissed.

Instead, Alexy suggests applying optimization as the differentiating criterion.
9
In
this sense, principles are optimization imperatives, that is, imperatives that can be fulfilled to
varying degrees (optimization postulate). In contrast, rules are norms that can always only be
either fulfilled or not fulfilled.
10
They are, thus, definitive imperatives.
11
With this

eines beweglichen Systems im brgerlichen Recht [Development of a Mobile System in Civil Law] (1950)
(speech as new university rector).
4
We are not dealing with later changes in Dworkins point of view concerning principles, cf. e.g. LARRY
ALEXANDER, Striking back at the Empire: A Brief Survey of Problems in Dworkins Theory of Law, in 6 LAW
AND PHILOSOPHY 419, 422 f. (1987).
5
See Alexy, Zum Begriff, supra note 2, at 67; Alexy, Zur Struktur, supra note 2, at 31. On Dworkins and
Essers theory of principles in more detail see below 1.3 So What Are Principles?. See also supra note 2.
6
L. ALEXANDER & K. KRESS, Against Legal Principles, in LAW AND INTERPRETATION 279 ff. (Andrei Marmor
ed., 1995). For a criticism of Dworkins claim that principles are nonlegal see Rolf Sartorius, Harts Concept of
Law, in MORE ESSAYS IN LEGAL PHILOSOPHY 131, 156 (Robert S. Summers ed., 1971).
7
NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY 244 ff. (1978); HLA HART, THE CONCEPT OF
LAW 263 ff. (2. ed. 1994).
8
Alexy, Zum Begriff, supra note 2, at 68 ff. For a similar criticism against Dworkin see FREDERICK SCHAUER,
PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN
LIFE 12 ff. (1991).
9
Alexy still speaks of ideal and real Ought (Sollen). See Alexy, Zum Begriff, supra note 2, at 79 ff. In this
sense, an ideal Ought is any Ought that does not require that its content actually and legally be possible in its
entirety, but requires that fulfilment be as extensive or approximating as possible. Id. at 81. The other
differences (degree of universality or how they handle cases of conflict; these will be addressed below) can be
explained on the basis of this difference. However, in his more recent summary, he no longer mentions the
concept, instead discussing optimization as criterion for distinction. See Alexy, Zur Struktur, supra note 2, at
31 ff. Thus, we will not deal with the complicated and vague criterion of ideal obligation here; rather, we will
focus only on Alexys most recent formulation of the distinguishing criterion.
10
Alexy, Zur Struktur, supra note 2, at 32.
11
It is not entirely clear, how Alexy would find out whether a general norm we are dealing with is actually just a
general rule (with rule-structure) or whether it is a principle with its principle-structure. After the legal
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formulation, Alexy basically reformulates the Dworkinian criterion, so that it is no longer
vulnerable to the abovementioned objection regarding provisos.

The other difference between rules and principlesasserts Alexybecomes clear in
cases of conflict. In conflict of rules, the collision is either resolved by rules of conflict (for
example, lex posterior), or one of the rules is declared invalid. Conflicts of principles,
however, are settled within a contingent relation of precedence between the two relevant
principles, considering the circumstances of the case.
12
Precedence means that the legal
consequence attached to the given supreme principle obtains, as opposed to the consequence
of the conflicting principle. Typical conflicts of principles include conflicts between two
fundamental rights.

And the final difference between rules and principles according to Alexy is that
principles involve a the more X, the more Y formula. The reasoning proceeds thus: if one
violates a principle in the name of another principle, then the more the intrusion in the former,
the more the need for justification by the latter.
13
Thus, the judge need not subsume in such
cases (as opposed to cases involving rules); rather, she or he must balance competing
principles. It follows from this weighing and balancing that the theory of principles implies
the principle of proportionality, and the other way around.
14


1.2 The Objection: Superfluous Concept

There is, however, a serious problem with the above theory: the concept of principles
logically distinct from rules is simply superfluous.
15


In order to understand fully this objection, we must digress briefly through the nature
of the concepts of legal theory. Such concepts serve to describe the mechanisms and
structures of a legal order.
16
Such concepts definition is not true or false; rather, it is
more or less expedient. One can speak of the truth or falsehood of the definition of a concept
of positive law. For example, 13 of the German Civil Code fixes the definition of
consumer for purposes of the Civil Code. Anyone who uses a conflicting definition in the
context of the German Civil Code, then, might be blamed to use a false definition. Concepts
of legal theory, however, are significantly more complicated in this respect. Specifically, they
do not employ any direct standard.
17
All that matters is the expediency, which is to say, its
explanatory force, its ability to explicate. A given conceptual system of legal theory,
therefore, is better, if within its framework (1) the greater number of legal phenomena can be

reasoning has taken place (a posteriori), the explanation in Alexian terms is possible, but before that (a priori) it
is not entirely clear which type we are dealing with.
12
Id. at 34.
13
Id. at 36.
14
Id. at 35.
15
Andrs Jakab, A magyar jogrendszer alapelemei [Basic Elements of the Hungarian Legal Order], in 2003/1
JOGELMLETI SZEMLE [REVIEW FOR LEGAL THEORY] at 2.4, available at http://jesz.ajk.elte.hu/.
16
FRIEDRICH KOJA & WALTER ANTONIOLLI, ALLGEMEINES VERWALTUNGSRECHT [GENERAL ADMINISTRATIVE
LAW] 2 (3d ed. 1996). For a similar analysis using different terminology, see GUSTAV RADBRUCH,
RECHTSPHILOSOPHIE [LEGAL PHILOSOPHY] 215 (8th ed. 1973) (distinguishing Rechtsbegriffe (concepts of law)
and rechtswissenschaftliche Begriffe (concepts of legal science)).
17
Unless we were to use definitions such as the concept of principles, for Alexy, means or under
principles, such and such is usually understood. In these cases, one can of course say that the definition is true
of false. But these would only be secondary statements of legal theory, dealing with what others have thought
about the law. This is, however, not the case with primary definitions, which aim at a direct explication of
certain legal phenomena.
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explained (2) coherently and (3) with the highest possible degree of simplicity (and (4)
political and ideological factors can also play a role
18
).

This yields another important difference between the conceptual approach of positive
law and that of legal theory. We may not simply forget concepts in the positive law. We
can debate over various definitions; but one thing we may not do: dismiss a relevant concept
as superfluous. This we may only do with concepts of legal theory, specifically, when they
have less explanatory force than the definitions of concepts of another (competing) legal
theory. If we can better deliver an explanation of the given legal order with a new
concept(ualization), then we can toss the old one into the trash.

Our thesis postulates as follows: the concept in legal theory that describes a principle
as having a logical structure distinct from that of rules is simply superfluous. The phenomena
explained by the concept can also be otherwise explained. Its introduction, thus, only
superfluously, unnecessarily complicates the explanation, since the presence of multiple
concepts of legal theory explains more complicatedly.

And what exactly does this conceptthat is, principles logically distinct from rules
explain? It explains legal reasoning and the application of law. The query is whether there
might be a simpler (conceptually more economical, Denkkonomie)
19
explanation without this
concept. We believe there is. Which is to say, principles logically distinct from rules can
also be understood as indefinite, abstract rules that are to be concretized through legal
application.

Here, we will consider the German Federal Constitutional Courts decision in
Lebachwhich Alexy also analyzedas our case study.
20
This judgment is intentionally
selected, so that Alexys good example can be repudiated.

The case involved the television station ZDF, which wanted to air a program about a
murder in the town of Lebach. The program included the naming of an accomplice. After a
court rejected the accomplices motion for a preliminary injunction preventing the broadcast,
he filed a constitutional complaint with the Federal Constitutional Court.

The constellation of the case, explained by way of principles (which is how Alexy
describes it), is as follows.
21
The principle of the protection of personality (article 2(1) in
connection with 1(1) Grundgesetz (German Constitution; hereinafter GG)) and the principle
of the freedom of reporting by means of broadcast (second sentence of article 5(1) GG), here,
stand in conflict with each other. The determination of which principle takes precedence
depends on a weighing and balancing of the concrete circumstances. Based on this balancing

18
Generally, see ROGER COTTERRELL, THE POLITICS OF JURISPRUDENCE 11 ff. (2003). As to the ideological
background of the division of the legal order into public and private law, see Speech of Robert Walter (in Strobl
am Wolfgangsee, Austria, on June 6-7, 1969), in ZUR ERNEUERUNG DER STRUKTUR DER RECHTSORDNUNG:
GESPRCH BER WEGE ZUR VERMEIDUNG DER ZERSPLITTERUNG DES PRIVATRECHTS UND ZUR BERWINDUNG
DES DUALISMUS VON FFENTLICHEM RECHT UND PRIVATRECHT [ON THE RENEWAL OF THE LEGAL ORDERS
STRUCTURE: CONVERSATION ON WAYS TO AVOID THE FRAGMENTATION OF PRIVATE LAW AND TO OVERCOME
DUALISM IN PUBLIC AND PRIVATE LAW] 49 ff., esp 50 ff. (year of printing unavailable). As to the ideological
background of the Stufenbaulehre (doctrine of hierarchical, or step-structured, legal order), see THEO
HLINGER, DER STUFENBAU DER RECHTSORDNUNG: RECHTSTHEORETISCHE UND IDEOLOGISCHE ASPEKTE [THE
HIERARCHY OF THE LEGAL ORDER: ASPECTS OF LEGAL THEORY AND IDEOLOGY] 32 ff. (1975).
19
To the concept of Denkkonomie see Leonidas Pitamic, Denkkonomische Voraussetzungen der
Rechtswissenschaft, in (1917) ZEITSCHRIFT FR FFENTLICHES RECHT at 347.
20
BVerfGE 35, 202.
21
ALEXY, THEORIE, supra note 2, at 84 ff.
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of competing factors, the Constitutional Court ultimately gave precedence in this concrete
case to the protection of personality.

But we can explain this case using (Alexian) rules, as well. Both rules (articles 1(1) in
connection with 2(1) GG on the one hand, and article 5(1) GG on the other) are very general
(i.e., indeterminate in content) rules which must be concretely interpreted in a concrete case.
The Federal Constitutional Court held the freedom of reporting, here, inapplicable (that is, it
interpreted this constitutional provision such that it did not encompass this concrete case). In
contrast, the Court found article 2(1) in connection with 1(1) GG applicable to the case. This,
not because balancing prefers the one principle or the other, but because the relevant rules
were interpreted such that the case only falls within the scope of the one. Once we drew the
borderline between the two principles, there remains no doubt or discretion whether our case
is under the scope of the one or of the other. It is either under it or not, tertium non datur. If
there is a different case we might be detail the borderline more precisely which now also
should deal with the special new problem occurred, but if the material facts of the two cases
are the same, then there is no need to deal with making the borderline more detailed or
precise. A balancing only takes place insofar as is always the case with teleological (or
purposive) interpretation and only before drawing the borderline.

The approach of rules is better also as to legal certainty: the Alexian principles imply
namely that the next time with the same material facts a different decision could be made (it is
just a question of different balancing...). Therefore it is argued here that we should assume
that the so called principles have the same type of normativity (i.e., they are either
applicable or not; and if they are, then they mean conclusively concrete legal consequences)
as the rulesis merely their scope which is uncertain because of the vague and general
expressions contained in their linguistic form.
22


So we can deduce that the concept, principles logically distinct from rules, is simply
superfluous since the problems of applying the law it explains can be explained without it.

1.3 Possible (Counter-)Objections against this Purely Rule-Based Paradigm

(1) The objection might be brought against my above reasoning that some norms evaluate
facts prima facie as a breach of law, but later (after considering the relevant circumstances)
we might consider these facts rather as not a breach of law. It is typically the situation with
fundamental rights, where e.g., we see a problem concerning (breach of) the freedom of
expression, but eventually (typically in order to protect another fundamental right) we do not
perceive it as a breach of the freedom of expression. Other norms, however, like the
deadlines in civil procedure, do not know this two-step application, where the prima facie
breach and the actual (eventual) breach differ. And according to the objection against my
reasoning, this latter type of norms could be identified with Alexian rules, the former type
with Alexian principles.

This objection is, however, mistaken. It does not anything else than mixing up the
restriction (Eingriff) of a fundamental right with its breach (Verletzung). The constitutional
provisions protecting fundamental rights (to stay with our example: the freedom of speech) do
not prohibit a restriction (e.g., any libel suit) of the freedom of expression, only its breach.

22
And more generally: the less processes of thought in judicial justifications we accept (or: the less models of
thought we accept for the reconstruction of judicial thinking), the better the chance to fight arbitrary decisions,
because new structural types of judicial thinking make the decisions less foreseeable. So, the burden of proof is
on the introduction of the new model of thought.
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The content of the freedom of speech is therefore not it is prohibited to restrict freedom of
speech, but rather it is prohibited to breach the freedom of speechwhere breach means a
restriction without (appropriate) justification (Rechtfertigung). Thus, it is not the case that
norms of fundamental rights would prohibit prima facie any restriction, but that later in the
case of good (justifying) reasons it could not resist to the justified restriction. Actually, there
is namely no prima facie prohibition of restrictions. There is only one type of prohibition: the
one of breaching the fundamental right. We came to this result at the end of a doctrinal test;
but the final result of the test (breach or no breach) should strictly be differentiated from
intermediate steps (like restriction or no restriction). To stick to our example: the meaning of
the freedom of speech is not that it is prohibited to restrict the freedom of speech but rather
that it is prohibited to restrict the freedom of speech without (appropriate) justification.
This prohibitory norm either prohibits an act or not: it is either under its scope or not. Tertium
non datur. There are no less prohibited and more prohibited acts; there only prohibited
and not-prohibited acts (either-or).
23


(2) Another objection might state that in the purely rule-based paradigm we cannot
explain how two principles are weighed against each other, and esp. we cannot explain why
one principle was given precedence against the other.

It is indeed true, that my theory does not explain the reasons in weighing (Abwgung),
because it belongs to a different problematic of legal theory. If we have two principles to be
weighed against each other than in fact we just interpret the first principle in the light of the
other and vice versa (i.e., we determine the scope of that principle with the help of the other
one). How we exactly do it (and why exactly a certain interpretation is chosen), belongs to
the general problematic of legal interpretation not to be mixed up with the logical structure of
norms.

(3) A third objection emphasises the problematic of optimization (Optimierung).
According to this, the simpler rule-paradigm cannot explain the optimizing nature of
principles.

In order to answer this objection, we have to make a difference between the repetition
of a legal reasoning on the one hand and its reconstruction by re-conceptualization on the
other. Judges might indeed talk about optimization in their justification (or without
mentioning the word, they might refer to the concept). It does not mean, however, that we
have to follow them by doing so, when we analyse their decisions. If we can explain what
they actually did by using a different conceptual frame, then we can do so. The concept of
optimization might be a useful concept in the principle-paradigm, but it is as superfluous in
the purely rule-paradigm as it is the Alexian concept of principle. We explained the
problematic without it (see above Lebach).

(4) A final objection asks how the fundamental rights restriction tests can be explained
in my theory and whether the individual steps of the test are separate rules.

This objection is similar to objection (1) mentioned above, and presupposes that
fundamental rights provisions are about the prohibition of fundamental rights restrictions.
This is, however, as shown above, a false assumption. If they were about restrictions, we
would indeed have a difficulty to explain them in the rule-paradigm. But they are actually

23
Similarly: in case of a mandatory norm (i.e., a norm obliging to do something actively) either prescribes an act
or not (so the above reasoning is not only about prohibiting norms, but also about others types, like mandatory or
empowering norms).
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about the prohibition of breach (i.e., restriction without appropriate justification). It means
that this problem has been transformed to a problem of interpretation (i.e., determination of
the scope of the prohibition of breach) again. The weighing of two principles is nothing
else but interpreting restrictively one rule (principle) in the light of the other.

The classical three step proportionality test (1. suitability, 2. necessity, 3.
proportionality in a narrow sense) can be translated into the rule paradigm as the following
questions: 1. Can we interpret rule A restrictively in the light of rule B? Is rule B a possible
reason to interpret rule A restrictively? (suitability) 2. Do we have to do so, in order to gain in
B? Is the restrictive interpretation of rule A necessary in the concrete situation in order to keep
the non-restrictive interpretation of rule B? (necessity) 3. Is the restrictive interpretation of
rule A not too radical as to the gain in B? Or would the restriction in interpretation less severe
if we interpreted exactly the other rule (i.e., B) restrictively in the light of the first (i.e., A)? Or
should we rather interpret both slightly restrictively in the light of the other? (proportionality
in a narrow sense)

1.4 So What Are Principles?

Thus, principles are not logically different than rules in structure. Principles are very
important (or fundamental, or basic) general (i.e., indeterminate in content) rules (or with
other words: structural decisions, Strukturentscheidungen). The designation as a principle
expresses this importance.
24
So whether or not we designate a general rule as a principle
functions as a rhetorical handle. Such a terminological promotion, however, is only to be
used in cases of very general rules.
25
Normally, it would be implausible to speak of the
fundamental importance of a minutely concrete rule.
26


This rhetorical nature of principles should not be (mis)understood as pejorative. It
simply indicates that the difference between principles and other general rules does not
pertain to its legal-logical nature. To put it another (better) way: the designation as a principle
can only have normative relevance, when construed so as evidence of the legislatures
decision about the rules importance. Thereby, in turn, (by historical or subjectively
teleological interpretation) precedence is to be given to whichever of two possible
interpretations conforms with so called principles.

And why do we promote some rules to principles? Of course, there is no simple,
single answer.
27
Some would emphasize the explicitness of their evaluative content;
28
their
referentiality to the idea of law
29
or to a supreme legal rule;
30
their significance to the legal

24
It does not mean that every important rule will be designated as a principle. It means simply: only important
rules have a chance to be promoted to principles. The criteria of promotion (and their weigh) are far from
clear, and will be dealt with later.
25
Cf. JEAN-LOUIS BERGEL, THORIE GNRALE DU DROIT [GENERAL THEORY OF LAW] 91 (3d ed. 1999) (cest
la gnralit...).
26
Even more rhetorically emphasized is the expression general principle (principe gnral, allgemeiner
Rechtsgrundsatz). If principles are to be understood as very important rules, then the expression general
principle can be decoded as very, very important rule.
27
The following overview is based on Alexy, Zum Begriff, supra note 2, at 65 f.
28
CLAUS-WILHELM CANARIS, SYSTEMDENKEN UND SYSTEMBEGRIFF IN DER JURISPRUDENZ [SYSTEM THOUGHT
AND SYSTEM CONCEPT IN JURISPRUDENCE] 50 (1969).
29
KARL LARENZ METHODENLEHRE DER RECHTSWISSENSCHAFT [METHODOLOGICAL DOCTRINE IN LEGAL
STUDIES] 207, 410 (1979).
30
Hans Julius Wolff, Rechtsgrundstze und verfassungsgestaltende Grundentscheidungen als Rechtsquellen
[Legal Principles and Fundamental Constitutional Decisions as Sources of Law], in FESTSCHRIFT FR WALTER
JELLINEK 37 ff. (Otto Bachoff ed., 1955).
- 8 -
order;
31
their nature ensuring rights;
32
the certainty of their insight; or their universality.
Others would speak of principles specific meta-normative functions. These will be discussed
below (3.3 Meta-Normative Functions).

It seems appropriate at this point to mention some relevant differences of opinion
between Esser and Dworkin. Firstly, for Esser, a principle implies greater discretion for the
judge, since she or he must shape such principles. For Dworkin, in contrast, a principle serves
to restrict judicial discretion.
33
Esser sees principles as the justification for decision; Dworkin
sees them as instructive (legally binding guidelines).
34
Secondly, Esser characteristically
excludes ethics from the analysis,
35
but Dworkin considers principles to be ethical principles,
whose very presence in the legal order evidences the untenability of the positivistic division
between law and morality. And, thirdly, legal principles for Esser are only created by way of
their use in judicial decision-making.
36
For Dworkin, legal principles are valid because they
are just (assuming they are coherent with the respective legal order).
37
Which author correctly
answers these questions will be discussed now in turn.

Firstly, the question, whether the presence of principles in a legal order contradicts the
positivistic division between law and morality, can be answered with an unequivocal No.
Even were we to recognize structurally distinct principles, this would not necessarily imply
the end of the positivistic division between law and morality.
38
At any rate, we have just
finished refuting the logical difference. Secondly, the two authors disputed the nature of
principles validity. But nothing compels the acceptance of a (non-positivistic) nature of
validity that is distinct from that of (other) rules.
39
Thirdly, Esser and Dworkin dispute
whether a principle gives a judge greater or less discretion; the answer depends on the
moment of analysis and whether the principle is positivized. (a) When dealing with a
positive (or positivized) principle, that is, when the principle can be found in a normative
text (like a statute), then the moment of analysis makes no difference. The interpretive
discretion, here, is certainly greater than with rules because the principles higher generality
permits more room for interpretation.
40
Discretion is, of course, less than with a rule that
itself confers discretion. (b) A principle developed by judicial practice, however, restricts
previous discretion, but only from the moment at which the principle becomes actually
binding. Thus, this does not apply to the initial point in time, for example, when the principle

31
LARENZ, supra note 29, at 464; Aleksander Peczenik, Principles of Law: The Search for Legal Theory, in
RECHTSTHEORIE 30 (1971).
32
On the fact that Dworkin identifies arguments of principle with arguments about rights see Donald H. Regan,
Glosses on Dworkin: Rights, Principles, and Policies, in RONALD DWORKIN AND CONTEMPORARY
JURISPRUDENCE 132 (Marshall Cohen ed., 1983).
33
See Jos Antonio Pascua, Die Grundlage rechtlicher Geltung von Prinzipien: eine Gegenberstellung von
Dworkin und Esser [The Basis of Legal Force of Principles: a Juxtaposition of Dworkin and Esser], in
PRINZIPIEN DES RECHTS [PRINCIPLES OF LAW] 24 (Giuseppe Orsi ed., 1996).
34
Cf. Esser, supra note 2, at 51 f.
35
See Pascua, supra note 33, at 22, n. 31. This is why Esser can be counted among the positivists. See Ewald
Wiederin, Regel Prinzip Norm: Zu einer Kontroverse zwischen Hans Kelsen und Josef Esser [Rule
Principle Norm: On a Controversy between Hans Kelsen and Josef Esser], in UNTERSUCHUNGEN ZUR REINEN
RECHTSLEHRE: ERGEBNISSE EINES WIENER RECHTSTHEORETISCHEN SEMINARS 1985-86 [ANALYSES OF THE PURE
THEORY OF LAW: RESULTS OF A VIENNA SEMINAR ON LEGAL THEORY], at 155 (Stanley L. Paulson & Robert
Walter eds., 1986). On similarities between Hart and Esser, see Pascua, supra note 33, at 18.
36
See Pascua, supra note 33, at 19 f.
37
Id. at 28.
38
Joseph Raz, Legal Principles and the Limits of Law, in 81 YALE L.J. 823, 851 ff. (1972).
39
See id. at 852 (coming to the same conclusion).
40
Cf. id. at 846.
- 9 -
is first formulated in an opinion. This restrictive effect, then, only becomes observable in
later judgments.
41


2. How Can Principles Be Ascertained (Recognized)?

The next question regarding principles asks how they can be ascertained, or recognized, in a
concrete legal order. This inquiry may not be as decisive as if the difference between rules
and principles was a logical, structural one, but it remains nonetheless unavoidable (because
of the special functions of principles as described below).

(1) The first case is when a principle is explicitly anchored in a legal text.
42

(1/A) Within this category, the text itself can call its rule a principle. (1/B) In other
instances, only the general rule is anchored, without being dubbed a principle by the text
itself. Such a designation usually occurs in the course of judicial application or among legal
scholars. In these examples, it is more appropriate to speak of the recognizing of principles.

(2) Another constellation has the principle ascertained (or manufactured) through
analysis of positive law.
43
This analysis can take place by way of either abstraction
44
from
concrete rules or from concrete rules by scrutiny of the political and moral context. The
former is the traditional method; Dworkin makes use of the latter. According to Dworkin, the
principles of a given societys political morality manifest themselves in the constitution, the
laws, and legal precedents.
45
Thus, the emergence of a principle out of the positive law
requires that political morality be kept in view. Only in this way can the legal system be
justified, thereby also justifying the ascertainment of its most important norms as proceeding
from political morality.
46


(3) Principles can ultimately also be newly introduced simply through judicial practice
or within legal scholarship.
47
This, however, seldom occurs, since such principles are

41
In this sense, too, we can understand the effect that codification (or positivization) of principles has on the
separation of powers. (1) The judiciary exercises greatest discretion when the legislature has prescribed neither
concrete rules nor principles. This case is of course normally irrelevant, as in such a case the judiciary has not
been given jurisdiction to decide anyway (without at least a prescription of principles, the empowerment would
at any rate only be based on arbitrary decision). (2) When the legislature does not pass any detailed rules
(instead, only a principle), greater discretionary room is left open to the judiciary than with concrete rules. (3)
But, when the legislature passes concrete rules and positivizes an (underlying) principle, it thereby actually
restricts the judiciarys room for discretion (as against the legislature), because principles further restrict judicial
interpretation of concrete rules (which leave less room for discretion anyway).
42
Ota Weinberger, Revision des traditionellen Rechtssatzkonzeptes [Revision of the Traditional Concept of
Legal Tenets], in REGELN, PRINZIPIEN UND ELEMENTE IM SYSTEM DES RECHTS, supra note 2, at 60.
43
Id.; see also STEFAN VOGENAUER, DIE AUSLEGUNG VON GESETZEN IN ENGLAND UND AUF DEM KONTINENT
[INTERPRETATION OF LAWS IN ENGLAND AND ON THE CONTINENT]1257 ff., 1273 f. (2001) (discussing British
and French courts role in this respect).
44
For Ptters attempt, see SIGRID JACOBY, ALLGEMEINE RECHTSGRUNDSTZE [GENERAL LEGAL PRINCIPLES]
38 ff. (1997). The introduction of a legal principle by the legislature is outside the scope of the present article,
since a valid legal order is presupposed as the object of the present analysis.
45
DWORKIN, supra note 2, at 66, 126.
46
Johann Friedrich Reitemeier (1755-1839) made a similar attempt, seeking to derive the general legal principles
from the constitution, customs, and religion of a given country. See JACOBY, supra note 44, at 45.
47
Weinberger, supra note 42, at 60.
- 10 -
vulnerable to accusations of arbitrariness. In such cases, the lack of a basis in positive law is
offset by moral arguments (for example, natural law).
48


(4) Finally, a combination of the above-named methods is of course possible, as well.
If, for instance, a general rule is explicit in a legal text and has been given shape through
much detailed regulation, then it has a good chance of being promoted by legal academia or in
judicial practice to the rank of principle.

3. What Is the Function of Principles?

And what, then, is the function of these very important general rules? They can, naturally,
have the usual function of norms: they can be rules of conduct.
49
Due to their usually very
general nature, this means they would act mostly indirectly, though not directly, to control
conduct (that is, by way of interpretation of concrete rules). At the same time, this does not
rule out principles direct control of conduct.
50
But we are interested here in the particular
functions of principles, which is to say, those not also characteristic of other rules. Lets have
a look, shall we?

3.1 Heuristic Function

Legal principles, ascertained through analysis of positive law, often have a heuristic function.
They assist in structuring and systematizing legal material to make it manageable.
51
This use
of principles was characteristic of, for example, the Germanists (lawyers dealing with
traditional non-Roman law in 19th century Germany), who confronted an unmanageable and
contradictory mass of laws. Therefore, they attempted to trace local and customary laws back
to so-called leading principles in order to effect a manageable, comprehensible structuring
of the law.
52
A similar function, among others, is ascribed to the respective principles of
democracy, the rule of law, and federalism in Konrad Hesses standard textbook on German
constitutional law.
53


Structure and manageability of the law are also necessary for legal certainty,
54
which
is in turn indispensable to the efficient operation of any society. It should also be noted here
that a structure that serves purely epistemological purposes can also have normative effect.

48
Giorgio del Vecchio, Les principes gnraux du droit [General Principles of Law], in RECUEIL DTUDES SUR
LES SOURCES DU DROIT EN LHONNEUR DE FRANOIS GNY 73 ff. (1934) (asserting that principles cannot be
ascertained through induction from the rules).
49
For an erroneous analysis, see Hyman Gross, Standards as law, in ANNUAL SURVEY OF AMERICAN LAW,
1968-69, at 575-80, esp. 578. For him, principles are only rules of argumentation (as opposed to rules, which are
rules of conduct). This, indeed, is one of their functions, but not the only. For an equally misguided opinion, see
Torstein Eckhoff, Guiding Standards in Legal Reasoning, in CURRENT LEGAL PROBLEMS 205-19, esp. 207
(1976).
50
Raz, supra note 38, at 841 (Principles as the sole ground for action in particular cases).
51
Compare Bettis viewpoint on principles as general educational figures, in Pascua, supra note 33, at 8.
52
JACOBY, supra note 44, at 139 ff.
53
See KONRAD HESSE, GRUNDZGE DES VERFASSUNGSRECHTS DER BUNDESREPUBLIK DEUTSCHLAND
[FUNDAMENTALS OF CONSTITUTIONAL LAW OF THE FEDERAL REPUBLIC OF GERMANY] 55 ff. (20th ed. 1999).
For the Hungarian counterpart in constitutional scholarship with a similar structure as given by the constitutional
principles, see JZSEF PETRTEI, MAGYAR ALKOTMNYJOG [HUNGARIAN CONSTITUTIONAL LAW] I 83 ff. (2002).
54
Cf. Armin von Bogdandy, Europische Prinzipienlehre [European Doctrine of Principles], in EUROPISCHES
VERFASSUNGSRECHT [EUROPEAN CONSTITUTIONAL LAW] 152 f. (Armin von Bogdandy ed., 2003).
- 11 -
Namely, when we describe the law, and this is broadly accepted, we thereby also alter the
law.
55


3.2 Practical Legal Functions in Applying the Law

In application of the law, principles have practical legal functions, as well. (1) They play an
important role in legal argumentation; in this sense, they regulate legal reasoning.
56


(1/1) The most apparent function is the interpretive function.
57
Specialized regulations must
be interpreted in conformity with general regulation.
58
Thus, where two interpretations of a
law are possible, preference is given to whichever is (more) compatible with legal principles
(i.e., general regulation).
59
This method, however, is inapplicable when dealing with clear
wording; from what, again, exceptions are possible depending on the specific legal order.
60

Legal provisions which limit principles must themselves be interpreted restrictively.
61


(1/2) Principles can also act as a corrective and as argumentative support for a desired
outcome, to which the concrete rules would not lead (or would not unequivocally lead).
62

Principles carry out this function particularly in the application of law wherever the method of
applying an inherent system of lawthat is, where only valid positive law, currently in force,
can be cited. An example is the Romanists of the historical school in 19th century
Germany.
63
The Romanists used legal principles as a corrective and as argumentative support
when the positive law failed to yield (unequivocally) the desired result.

Furthermore, the US case law which Dworkin made famous also can be, in my view,
classified here.
64
In the first case, Riggs v. Palmer,
65
the concrete rules foresaw inheritance by
a grandson, but these rules failed to answer in the case because he had killed his grandfather.
Invoking the principle, no one shall be permitted to take advantage of his own wrong, the
court identified an exception to the concrete provisions. In the second case, Henningsen v.
Bloomfield Motors, Inc.,
66
the court held, contrary to the concrete contractual provisions, for
an ordinary consumer in the name of a general principle.

(1/3) Reaffirmation of the holding. In Austria, 7 of the General Austrian Civil Code
(ABGB) was often applied, though only as additional authority for the reasoning and the
holding, which had already been derived from the concrete positive law.
67


55
ANDRS SAJ, KRITIKAI RTEKEZS A JOGTUDOMNYRL [CRITICAL STUDY ON LEGAL SCHOLARSHIP] 25 f.,
108 f. (1983); GEORG JELLINEK, ALLGEMEINE STAATSLEHRE [GENERAL STATE THEORY] 50 (3d ed. 1913); NEIL
MACCORMICK, QUESTIONING SOVEREIGNITY: LAW, STATE, AND NATION IN THE EUROPEAN COMMONWEALTH
113 (1999).
56
Eckhoff, supra note 49, at 205-19, esp. 207; Gross, supra note 49, at 575-80, esp. 578.
57
JOHN A. USHER, GENERAL PRINCIPLES OF EC LAW 122 f. (1998).
58
Raz, supra note 38, at 839 (Principles as grounds for interpreting laws).
59
VOGENAUER, supra note 43, at 1274.
60
Id.
61
Id. at 1275.
62
Raz, supra note 38, at 840 (Principles as grounds for particular exceptions to laws).
63
JACOBY, supra note 44, at 115 ff.
64
DWORKIN, supra note 2, at 23 f.
65
115 N.Y. 506, 22 N.E. 188 (1889).
66
32 N.J. 358, 161 A.2d 69 (1960).
67
JACOBY, supra note 44, at 89 ff. 7 ABGB: If a case cannot be decided with reference to the words of the
law, regard shall be had to analogous cases explicitly dealt with in the Code and to the policies underlying other
kindred laws. If the case still remains in doubt, it shall with careful consideration of the surrounding
circumstances, be decided according to the principles of natural law.
- 12 -

(2) A principles abstractness (i.e., generality or indeterminacy) also permits for the
possibility of applying rules formally not in force within the legal order of law that is in force.

(2/1) Gateway for legal rules formally no longer in force. In this way, for instance, after the
passing of the Code civil in France, the Roman law could continue to have effect in the
principes gnraux, although the legislator had actually derogated Roman law.
68
The
general principles (allgemeine Rechtsgrundstze) of 7 of the Austrian Civil Code (1811 in
Austria) had a similar function.
69
They meant, in reality, principles of Roman law. Similar
interpretations were used for the equivalent provisions of the Codex Maximilianeus Bavaricus
Civilis (1756 in Bavaria), the Prussian Allgemeines Landrecht (1794 in Prussia), and the
Badisches Landrecht (1810 in Baden).
70


Whether and how these provisions were applied in practice, however, is a separate
matter. The two poles are Prussia and France. In the former, application of law based on
introductory article 49 of the Allgemeines Landrecht virtually never took place.
71
But in
France the principes gnraux truly were the normative bases for numerous decisions,
namely, the basis for application of the rules of the (formally no longer in force) Roman
law.
72


(2/2) Gateway for rules of other legal orders, or bridging function between different legal
orders. Principles permit the discovery of common ground among multiple legal cultures.
This function has a heightened importance where representatives of multiple legal cultures
simultaneously participate in the determination of law (as with Community law or
international law)
73
without any detailed regulation about the legal base of decisions. In such
cases, the legal solutions of state legal orders are analogously applied.

(2/3) Gateway for ideas of (social and political) morality. Interestingly, both positivists
(Kelsen, Merkl) and the natural law scholar Giorgio del Vecchio emphasized this function of
principles. The positivists always saw within the very general rules a possibility for
discretion.
74
And discretion is the doorway in the legal building through which extralegal
motivations can break in.
75
For these two authors, extralegal motivations would include, for
example, notions of morality. The Italian natural law scholar Giorgio del Vecchio proceeds
from an entirely other origin to a similar endpoint. He considers the presence of principles in
various legal codes to be an indication that even the legislator agreed: without these moral
rules, no legal code can operate.
76
Thus, Vecchio does not only contemplate principles as an
open door for any and all notions of morality (as do Kelsen or Merkl); rather, principles
themselves are natural law merely codified into positive law.
77



68
Id. at 75 ff.
69
Id. at 63 ff.
70
Id. at 57 ff., 81 ff.
71
Id. at 100 ff.
72
Id. at 104 ff. Austrias middle position has already been mentioned above (as reaffirmation of the holding).
73
See id., at 184 ff. (citing examples from international law); see also id., at 210 ff. (citing examples from
Community law based on article 215(2) of the EEC Treaty).
74
Kelsen, however, is skeptical of law development by the judiciary. See Wiederin, supra note 35, at 146; HANS
KELSEN, ALLGEMEINE THEORIE DER NORMEN [GENERAL THEORY OF NORMS] 97 (1979).
75
ADOLF MERKL, ALLGEMEINES VERWALTUNGSRECHT [GENERAL ADMINISTRATIVE LAW] 152 (1927) (authors
translation of German original).
76
Vecchio, supra note 48, at 78 f.
77
Id. at 82.
- 13 -
(3) And one last function follows from the previously discussed practical legal functions,
namely, developing the law.
78
A decisive novelty of Essers theoryas opposed to the earlier
methodological theory which described judges as discovering principlesis precisely its
emphasis on principles function to develop (change) the law.
79
This function is characteristic
in legal practice, in particular where the legal order in certain aspects is underdeveloped and,
thus, more dependent on the borrowing of other legal orders solutions (again, as in
international law or Community law.)
80


Some argue that the legal force of acts of law is sometimes made dependent on their
correspondence with legal principles (function as criterion of validity).
81
But one must keep
in mind that this point of view can mislead. Granted, important rules are indeed often packed
into higher ranking acts of law (for instance, into constitutions) as principles, subsequently
serving as a standard, against which the validity of lower rules is tested. And a given
constitutional court (or the ECJ) sometimes develops principles, treating them as
constitutional law, though without an explicit constitutional reference (invisible
constitution).
82
However, it is essential to bear in mind that these principles act as standard,
not because they are principles, but because the have a higher rank (or, perhaps, because they
are treated thus: invisible constitution). Naturally, principles have a greater chance of being
incorporated into the constitution or being treated as constitutional law by the given
constitutional court. But, while the correlation is certainly probable, it is also not inevitable.
Some principles (such as the principles of civil law) are not incorporated into the constitution.
This function of a criterion of validity, thus, is not specifically related to the nature of
principles but instead relates to hierarchy.

3.3 Meta-Normative Functions

Principles can also fulfil meta-normative functions. Namely, (1) ex ante (e.g. programming
the legislation)
83
and (2) ex post (the justification for rules).
84


The literature emphasizes especially this justifying function, which can be based either
on the legal order as a whole (the ideological-legitimizing function)
85
or, more often, only on
a concrete rule or group of rules and institutions. It is another question, whether these
justifying principles themselves can be used in application of the law.
86



78
Raz, supra note 38, at 841 (Principles as grounds for making new rules).
79
Wiederin, supra note 35, at 139; ESSER, supra note 2, at 83. Gny also emphasized this instructive function.
See FRANOIS GNY, 1 MTHODE DINTERPRTATION ET SOURCES EN DROIT PRIV POSITIF [METHODS OF
INTERPRETATION AND SOURCES OF PRIVATE POSITIVE LAW] 41 ff. (2d ed. 1919); BERGEL, supra note 25, at 98.
80
JACOBY, supra note 44, at 170 ff., 209 ff.
81
USHER, supra note 57, at 123 f.
82
The Hungarian Constitutional Court serves as an example. See e.g., 23/1990. (X.31.) AB, translated in LSZL
SLYOM & GEORG BRUNNER, CONSTITUTIONAL JUDICIARY IN A NEW DEMOCRACY: THE HUNGARIAN
CONSTITUTIONAL COURT 126 (2000).
83
See Pascua, supra note 33, at 10 (explaining the programming or orientating function); Raz, supra note 38, at
840 (Principles as grounds for changing the laws).
84
See Raz, supra note 38, at 839 (analyzing principles as values in law); Neil MacCormick, Principles of
Law, 19 JURID. REV. 224 (1974) (underlying reasons and values).
85
DWORKIN, supra note 2, at 105.
86
Compare LARENZ, supra note 29, at 207, 410 (answering negatively), and FRANZ BYDLINSKI, JURISTISCHE
METHODENLEHRE UND RECHTSBEGRIFF [LEGAL METHODOLOGY AND CONCEPT OF LAW] 132 ff. (1991)
(answering negatively), with BERGEL, supra note 25, at 97 (answering affirmatively).
- 14 -
I assume that principles themselves can apply, assuming they have been positivized,
that is, they exist either in a legal norm or within judicial practice. But the mere fact that they
justify and underlie other norms, of course, does not alone make them directly applicable.

3.4 Social Functions

Noteworthy social functions of a principle include (1) the reconciliatory integrating function
and (2) the value integrating function.

The former signifies that the generality of principles also covers (regulates) those
social conflicts not covered by concrete rules. Thus, such conflicts can be resolved in a legal
framework, so there remain no legally unresolved conflicts leading to desintegration. This
function, however, characterizes any very general regulation.

The latter signifies that the designation as principle underscores importance. This
permits emphasis and explication of a societys common, important values, which in turn
tends to promote integration.
87
After all, that which is highlighted as importantthose
general rules worthy of the noble title of principleis a question of valuation.


87
See Bogdandy, supra note 54, at 154 (detailing the task of a European doctrine of principles to promote
identity).