A Step Further
In the following, only the formally valid rules and principles will be dealt with. According to the main thesis of this study, the rules and principles form a scale divided into four segments.
The scale includes more than two overlapping categories of norms. The segments of the scale are as follows: rules (R), rule-like principles (RP), principle-like rules (PR) and principles (P).Pacta sunt servanda is a typical rule (R): either the agreement ought to be kept or not. The principle No one may benefit from a wrong he has done (Dworkin 1977a, 91) belongs to the group RP. From a formal point of view, it is a principle, but on a closer look it undoubtedly belongs to the category of rules. Either it is or it is not followed. Some norms are evaluatively as open as the principles. They belong to the group PR. An example is an open texture norm. Finally, there are proper principles (P), such as the principle of equality and other basic human rights principles.
There are no clear boundaries between the segments. A norm may be more rule-like than principle-like, and vice versa. This is the reason why the relationship between rules and principles can only be analysed through case-by-case analysis - i. e., norm by norm.
The distinction between rules and principles can now be classified only as a matter of degree of generality. The applicability of a norm is shading from one segment to the next. Only the extreme ends of the scale can be strictly separated. What does this, at a closer look, mean? Following the ideas introduced by Francisco Laporta the scale metaphor can be characterised as follows (Laporta 2011, 281):
(1) The rules are a concluding support for the solution, whereas principles are supposed to be a prima facie (PF) reason based on our general linguistic competence. In order to be a PF (legal) norm a rule of recognition implying the validity of it must be identified (Alexy 1985, 75; Wroblewski 1983, 311).
(2) All things considered (ATC), a PF legal norm does not necessarily be a part of the legal order, as is the case, when there happens to be a contradiction in the normative system.
In DSL the subject matter is always a norm formulation to be interpreted. This formulation is, in its turn, either PF precise or PF imprecise, i.e., vague, evaluatively or cognitively open, ambiguous, or unclear. The rules as well as the principles may have the same degree of inaccuracy. Therefore it is not possible to divide them in sharply distinct linguistic categories (Sartor 1995, 123).
A legal norm may be PF unambiguous as is the prohibition: Parking forbidden, and PF ambiguous as well: A contract ought to be executed in written form.
A rule-like principle may be cognitively ambiguous (the terms “contract”, “legacy” and “cause”), or evaluatively ambiguous (adjustment of a contract). Principle-like rules may refer, for instance, to such open texture as “special circumstances of the case”, Finally, legal principles are, as to their nature, either cognitively or evaluatively open.
All things considered (ATC), a norm formulation has always a precise meaning content independent of the fact, whether or not the formulation applies to rules, principle-like rules, rule-like principles or principles. This means that, for instance, the interpreted principle of equality expresses an ATC rule, which either has or has not to be followed. The same holds true in a case, where two PF valid value principles are in conflict with each other. Interpreted (ATC) and applied in an optimal way they together constitute a rule applicable to the case.
From the deontological point of view, the rules and principles have a different role in legal reasoning. Legal rules are a matter of interpretation, legal principles that of weighing. This means that only the rules belong to the field of deontic logic, whereas the principles follow the logic of preference. Here we need, however, one specification more introduced by Francisco Laporta. He has separated ought to do norms (Tunsollen) from ought to be norms (Seinsollen).
In this regard, the principles deal with the ideal state of affairs, which, in its turn, can be the subject matter of weighing (Laporta 2011, 282). From logical point of view, in such a situation only the logic of preference can be applied. In this and only in this regard, it makes sense to say that a principle is an optimisation mandate (Alexy 1989, 63, 1985, 75).
Let us take an example. The principle P concerns the freedom of speech. This principle itself is not an optimisation mandate, because the mandate is a normative proposition about principles. Recalling the four categories of norms identified above, the optimisation mandate is necessarily a rule-like norm: either it is or is not followed. It cannot be applied “more or less”, because one either does or does not optimise. On the other hand, only the principles are genuine weighing norms (Peczenik 1989, 74). In a case of conflict between two value principles, the mandate orders the balance between the principles, and makes it in an optimal way.
Referring to Georg von Henrik Wright, Francisco Laporta argues that the “bridge” from “ought to be” to “ought to do” is a practical necessity following the scheme of practical syllogism: If X ought to be good, it is practical to do Y in order to achieve X (Laporta 2011, 283). This problem is left outside the present study (see more Aarnio 1997, 181-183).
There still remains one question open: Is it really possible to draw a clear borderline between ought to do and ought to be norms? Would it be more natural to say that all norms have a similar deontic structure? If this view is accepted it seems to me, that all norms should be of ought to do type. This being so a typical norm can be rewritten in the form (x) (FOxG): If the state affairs “someone benefitted from the wrong he did” (F) prevails, then an authority ought to do G. In this sentence, F is a description of the behaviour of the person and G a description of the legal consequence.
Depending on the context, the same normative substance could, according to this idea, be expressed either in “ought to do” or in “ought to be” language.
This twofold-thesis” meets, however, logical problems (see more Aarnio 1997, 182-183). In case that the principle is written in the “ought to do” form, it is difficult to see, how the weighing and balancing “follows” the rules of deontic logic. It is more consequent to interpret legal principles and norms like them not as ought to do, but, consequently, as ought to be norms. The logic of preference is then applicable to principles and principle-like rules, as well as rule-like principles. On the other hand, deontic logic and only it is applicable to the logic of ordinary rules.All this means, that neither the strong nor the weak demarcation thesis is valid. It is misleading to claim that legal rules are always definite and that legal principles can only be characterised as prima facie norms (cfr Aarnio 1990, 192). Rules also have a prima facie role in discourse and, for example, a flexible legal rule is anything but definite before consideration. On the other hand, a principle-like rule may, in a certain decision-making situation, not only be prima facie applicable but also “definite” in that it provides the solution without the need for further arguments.
From the methodological point of view, rules and principles refer to two different activities typical of DSL. The rules are the object of interpretation, whereas the principles call for weighing and balancing. Although the latter belongs to the hard core of modern law, and may, depending on the field of law, be even more important than the traditional interpretation, the emphasis of this study is more on the interpretative task of DSL.