On principles as the Source of Law

In modern law, the problem no longer lies in whether or not the DS doctrine is rele­vant but in the strength of reasoning (degree of being binding). In general terms, the question concerns the boundary between what is law and what is not.

Does the growing significance of principles mean that the focus in legal rea­soning is moving from concepts to principles? This is not the case. Even though principles having a different content and a different hierarchical level have become rooted in the legal order, it cannot be said that the notion of the legal system has crumbled, neither has its significance in terms of legal thought been reduced. As far as legal reasoning is concerned, it would be more proper to speak of the return of the conceptual frameworks (of ius commune) instead of emphasising the vanishing of the conceptual approach.

What Robert S. Summers has written on the forms of law and its systemic char­acter also point in the same direction (Summers 2006, 17-36; Summers 1992, 154). The legal decisions can only be made within a system. If systemic boundaries are breached, the decision can be “good and correct” from a social point of view but it is no longer legal. As this is the case, the boundaries of the system have become espe­cially important, as have the location of the boundaries. Legal principles, in their turn, have a difficult dual role, which easily makes the thought move in a circle. The principles partly point out the boundaries of the system, but a principle can only express the boundaries of law if we know that it actually is a legal principle.

There is one way out of the circle.

1. If the legal principle is manifest in the legislation, it becomes a strongly binding legal source. Institutional support can be found in a regulated norm.

This is the case of basic human rights protected by the Constitution. However, this concerns also such principle-like rules as the “general” principle of adjustment of contracts in Finland (Article 36 of the Contracts Act). Before this article, the legal literature had sought institutional support for the principle from different fields of the legal order. In this, some kind of induction was used to justify the generalisa­tion of the principle to concern adjustment cases not expressly mentioned in the individual statutes.

2. If the legal principle is not manifest in the legislation, it may gain the status of a weakly binding legal source through acceptance. Here, the principle receives institutional support mainly by the precedents.

However, the legal principle is often tacitly accepted in the precedent but is not publicly expressed among the reasons. It may even have a decisive impact but be “covered” with other arguments. Such principles that are not manifest but are used in practice are, for example, “pacta sunt servanda”, “no one can benefit from his own wrongdoing”, “the heir cannot have a better right than the deceased” or “falsa demonstration non nocet”. Practical reasoning usually refers directly to the relevant precedent and not to the principle tacitly expressed in its justification.

Therefore, a specific general principle (at least, in Finland) rarely, if ever, receives the status of a legal source solely in support of acceptance, and if a principle has the value of a legal source, its position is in the category of permitted sources of law.

Ota Weinberger hits the nail on the head with his idea that a moral argument “becomes” a legal one, if, and only if, it is included in valid legal argumentation (Weinberger 1982, 43). I fully agree with Weinberger. Here lies one borderline between law and non-law. An argument used in a moral context continues to be a moral one if it is not accepted as a source of law. In this regard, the quality “to belong to the sources of law” is the same as the quality “to have institutional support”, because the latter can only be reached if an official institution - that is, the court - accepts the moral argument as a legal one. This also goes for general legal principles.

Because legal interpretation can only function within the framework of the legal system, the flexibility that crosses the boundaries of the system breaks the spine of the law. This breaking, in turn, is a threat to the democratic constitutional State, the core of which remains the guarantee of maximum legal certainty (Aarnio 1989c, 409). In modern law, it is, for its part, built on predictability, which is sup­ported by systematisation and stability, among others. Actually, legal protection is often thought to consist only of predictability, which is seen to guarantee the well-functioning of the social system, whereas the lack of predictability makes law arbitrary “non-law” that changes from case to case.

Regardless of whether the matter is understood in such a narrow way, it is obvi­ous that no democratic Constitutional State can sacrifice predictability on the altar of flexibility and case-based reasonability. Flexible regulations, their large-scale appli­cation and “soft” interpretation jeopardise predictability. Law stops being law and primarily becomes the delivery of “reasonability”.