Weak Demarcation Thesis

According to the weak demarcation thesis, there is only a difference of degree, not of quality between rules and principles. Also the weak demarcation thesis is connected to the Wittgensteinian basic idea: Rules and principles are in a family resemblance relationship to each other.

It seems quite natural to think that the value content of principles is more “appar­ently” present than is the case with rules. According to this idea, the principles simply express values. This does not hold true. The rules have often a value content as well. In this regard, the rules and principles cannot be distinguished from each other as clearly as is often maintained.

The weak demarcation thesis seems to be linguistically problematic as well. As Neil MacCormick emphasises, all legal norms are defeasible:

Any formulation of legal provisions by way of doctrine, or of litigious argument, or as part of knowledge based on an expert system, is likely to be defeasible in some circumstances (MacCormick 1995, 115)

Giovanni Sartor shares this opinion. He does not deny the difference between rules and principles in general. There is a difference, but none as regards the defeasibleness. Sartor argues that

every norm possesses the characteristics Dworkin attributes to principles: it is defeasible in a set of circumstances not abstractly predetermined, and remain valid even if contradicted by prevailing norms in particular cases (Sartor 1995, 144).

This is the core of the story. From a semantic point of view, principles as well as some rules may be imprecise.

as a “principle” to the extent that its antecedent contains imprecise or evolutional terms, and its priority is indeterminate (Sartor 1995, 144).

Ronald Dworkin, in his turn, argues that principles not only have a different linguis­tic status compared to rules but they are also valid due to a moral deliberation. That is why he uses the word “principle” to refer to value or goal principles (Dworkin 195, 91; cfr Shiner 1985, 61). As far as I see, Robert Alexy goes even further remind­ing that a principle is always a normative reformulation of a value (Alexy 1985, 15). This specification does not solve the dilemma. As we will see later on, some open texture “rules” are at least partially reformulations of values too.

Let us take an example. Dworkin quite often refers to the principle “No one may benefit from a wrong he or she has done” (Dworkin 1977b, 22). However, the use of the notion “principle” in this regard is misleading. The norm referred to by Dworkin clearly involves an either/or type quality. It is a rule. In order to avoid con­ceptual difficulties like this, one has to accept a third way as regards the separation the rules from the principles. Following this third line, neither the strong nor the weak demarcation thesis is valid as such. Both thesis catch, no doubt, some relevant dimensions of the problem, but both also fail to provide a satisfactory picture of the topics (Aarnio 1990,186). According to this third demarcation thesis, it is necessary to keep separate at least the following types of norms:

(1) The principles expressing the basic ideological values of the legal order.

(2) Positive legal principles are included in the valid law or they are assumed to be relevant to it (Tuori 2003, 327). The following examples elucidate the nature of this kind of principles:

• Formally valid principles like principles of basic social and political rights are directly manifested in valid statutes. To this group belong principles which guaran­tee freedom of speech, freedom of association, equality and so on. Some formally valid principles are manifested in private law as well as is the case with the principle of bona fides in contract law.

• Principles based on legal induction have traditionally been much discussed in legal philosophy (Niiniluoto 1976, 335, 1980b, 193, 1981a, 362; Aarnio 1979, 191; Cohen 1970, passim; Makkonen 1965, 177). The idea of legal induction concerns the possibility to derive a general principle from a set of particular valid rules by means of inductive reasoning.

• Decision-making principles in both adjudication and DSL are standards like “audiatur et altera pars” as well as the principle of legality in criminal law, and the “praeter legem” principle. Some of these principles are expressed in the statutes, as are “audiatur et altera pars” and “praeter legem”. The prohibition against the use of analogy in criminal law is an example of a principle not specifically recorded in (Finnish) law. Principles of the last type are tacitly accepted in the legal community.

• A moral principle is a typical example of an extra-systemic principle. Prima facie, law and morality are two different things. Only legal rules can be formally valid in a certain legal order, although moral principles may have a role in legal reasoning as an argument in the choice between two or more meaning alternatives. As a part of legal reasoning, moral principles “become” legally relevant. Law and morality become intertwined, as shall be demonstrated below.