Non-normative Principles

Abstract

How should we think about legal principles? I mean principles understood as a distinct kind of legal provision (contrasted with rules and with enacted standards). In analytic jurisprudence, the best-known account of legal principles — Ronald Dworkin’s account — assigns them a normative function in law, albeit not a hard or determinate one. But legal principles sometimes serve a characterizing rather than a normative function: they tell us about the character of a legal system rather than giving us instructions about how to deal with difficult cases. There is a further question whether characterizing principles can nevertheless perform some sort of normative function in legal argument. In the second half of this paper, I consider the operation of constitutional principles, like the rule of law and the separation of powers. John Manning, in his treatment of the separation of powers, implies that is hard for constitutional principles to work normatively in our law because their representation in the constitutional text is ragged and compromised, and they present us with no canonical text other than the detailed provisions of the Constitution itself to chart the contours of such compromises.

Keywords: comparative law, contradictions, Critical Legal Studies, Dicey, Dworkin, Hart and Sacks, legal process, moral pluralism, normativity, principles, rule of law, separation of powers