On the Strong Demarcation Thesis

The opinions can roughly be divided into two: a strong and a weak demarcation thesis. According to the strong demarcation thesis, the difference between rules and principles is a qualitative one (crf Poscher 2007, 62).

This thesis is partially based on the Wittgensteinian notion of rule: Rules either are or are not followed (Finch,158). They are like railroad tracks: either one follows them or does not follow without no third alternative available (Schauer 1992, 226). This is also the case with legal rules. There can be, and always is, exceptions to the rules, and, in principle, it is possible to list the all the exceptions. In this very sense the rule are “closed” as to their nature.

The conflict between two rules can be decided with, for instance, the lex pos­terior maxim. The binding nature of principles is qualitatively different. Francisco Laporta has described the principles as follows. First, principles only provide prima facie reasons for a solution. Further, principles but not the rules have a dimension of weight of importance, and finally, principles are so-called mandates of optimisation. This means that the principles are closely intertwined with values as well as with political and moral goals (Laporta 2011, 279).

This means that principles only point out the direction in which the decision should be sought in cases when there is a collision between principles. Torstein Eckhoff and Nils Kristian Sundby speak about standards or guidelines (riktlinjer) for the decision-maker. This description makes sense when only a certain principle has to be applied to a single case. Let us take as an example the principle “No one may benefit from his/her wrong doing”. In a case of uncertainty, when the normal sources of law do not define the solution, this principle forms a guideline. It may even be the decisive argument for the solution.

This does not hold true when two or more principles collide with each other. The principle having greater weight overrides the less important principle. That is the reason why there is no binding hierarchical order of criteria, how the collision should be decided, but only a weak order of preference between principles. This order is determined by the priority values and goals that lie behind them.