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ROUNDTABLE
Ronald Dworkin’s principle based
constitutionalism: An Italian point of
view
Gustavo Zagrebelsky*
1. The doctrine of principles and positivism
This essay focuses on Ronald Dworkin’s attack on legal positivism by means of
his theory of law as based on principles. Although this is an eminently theoretical subject, I will, nevertheless, bring to it practical insights that I have developed
as a judge on the Italian Constitutional Court. On a day-to-day basis, such a
judge is charged with enforcing the Constitution within a continental European
legal system that differs from the common law system that forms the background of Taking Rights Seriously,1 Law’s Empire,2 and A Matter of Principle.3
Based on that experience, I will seek to evaluate Dworkin’s theory of principles
not only on the basis of subjective or theoretical preferences but also on the basis
of objective criteria inherent in genuine judicial practice. Indeed, praxis may be
determined, in part, by the subjective inclinations of judges, but it cannot escape
from certain objective constraints that circumscribe the task of adjudication.
In Italy, Dworkin’s theory of principles is discussed among scholars in
jurisprudence but has no explicit influence on judicial interpretation or adjudication. Implicitly, however, the theory of principles is at work—at least in the
manner I specify below—and it is precisely its perspicuity in grasping real
problems and in providing a theoretical account of the actual tendencies in the
present exercise of adjudication in the countries within the European continental tradition, prevalently based on written laws,4 that is most striking.
* Professor of Constitutional Law, Turin University; justice of the Italian Constitutional Court
1
RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (Harvard Univ. Press 1977).
2
RONALD DWORKIN, LAW’S EMPIRE (Belknap Press 1986).
3
RONALD DWORKIN, A MATTER OF PRINCIPLE (Harvard Univ. Press 1985).
4
In literature written in Italian, the following works are dedicated to the critical examination
of Dworkin’s principles: Sergio Bartole, In Margine a “Taking Rights Seriously” di Dworkin, in 10
MATERIALI PER UNA STORIA DELLA CULTURA GIURIDICA 185 (Il Mulino 1980) [hereinafter MATERIALI];
G. Rebuffa, Costituzionalismo e giusnaturalismo: Ronald Dworkin e la Riformulazione del Diritto
© Oxford University Press and New York University School of Law 2003,
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The concept of law as a collection of norms of behavior exclusively
proposed by the legislator (both constitutional and ordinary) is still prevalent
among legal academics, judges, and lawyers. Also dominant is the idea of
adjudication as a logical-deductive operation consisting in the objective application of the law to a particular case in point, by way of a normative and legalistic syllogism and without any need to look beyond the four corners of the
law. The minimum essential postulates of legal positivism, as developed on the
European continent, are thus perfectly mirrored in the idea that jurists have of
their own activity: an idea of themselves undoubtedly contradicted by reality
but which, notwithstanding the facts, continues to be fostered for reasons
worthy of close examination—as will become evident in the discussion below.5
Naturale, in 10 MATERIALI 209; G. R. Carrió, Le Opinioni del Prof. Dworkin sul Positivismo Giuridico, in
10 MATERIALI 143; ANNA PINTORE, NORME E PRINCIPI: UNA CRITICA A DWORKIN (Giuffrè 1982); Riccardo
Guastini, Soluzioni dubbie. Lacune e interpretazione secondo Dworkin, in 12 MATERIALI 454 (1983);
BALDASSARE PASTORE, I PRINCIPI RITROVATI: SAGGIO SU RONALD DWORKIN (1985); Baldassare Pastore,
Coerenza e Integrità nella Teoria del Ragionamento Giuridico di Ronald Dworkin, 1992 RIVISTA DI DIRITTO
CIVILE 423 (CEDAM); Pierluigi Chiassoni, L’Antiscetticismo Panglossiano di Ronald Dworkin, in 17
MATERIALI 224 (1987); Giuseppe Zaccaria, Diritto come Interpretazione: Sul Rapporto tra Ronald
Dworkin e L’Ermeneutica, in 17 MATERIALI 303 (1987); Aldo Schiavello, Riflessione sulla Distinzione
Rules/Principles nell’Opera di Ronald Dworkin, 1995 RIVISTA INTERNAZIONALE DI FILOSOFIA DEL DIRITTO
159; I. S. Papadopoulos, Interpretazione Artistica ed Ermeneutica Giuridica, 1998 RIVISTA DI DIRITTO
CIVILE 211; Giogio Bongiovanni, TEORIE COSTITUZIONALISTICHE DEL DIRITTO: MORALE, DIRITTI E
INTERPRETAZIONE IN R. ALEXYE R. DWORKIN (CLUEB 2000); SUSANNA POZZOLO, NEOCOSTITUZIONALISMO E
POSITIVISMO GIURIDICO (Giappichelli 2001).
Numerous references to his theories can be found in writings devoted to the general structure
and doctrine of the law, such as GIUSEPPE VOLPE, IL COSTITUZIONALISMO DEL NOVECENTO 296 (Laterza
2000); ALFONSO CATANIA, MANUALE DI TEORIA GENERALE DEL DIRITTO 122–25 (Laterza 1998); Paolo
Comanducci, Su Dworkin, in 2 L’ANALISI DEL RAGIONAMENTO GIURIDICO: MATERIALI AD USO DEGLI
STUDENTI 356 (Paolo Comanducci & Riccardo Guastini eds., Giappichelli 1989).
To complete these bibliographical references, one may remember that Dworkin’s doctrine forms
the basis of chapter 6, Il diritto per principi, of one of my books. See GUSTAVO ZAGREBELSKY, IL DIRITTO
MITE (Eiunadi 1992).
5
A common idea prevails that it is impossible to collect under one umbrella definition all the trends
that define themselves as positivist. Each person expects to stick to his own version, each more polished than the original one, which goes back to John Austin: that the law is a command given by
political superiors to their inferiors. See JOHN AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED AND
THE STUDY OF JURISPRUDENCE 11 (Noonday Press 1954). In this way, the positivists make sure they
have a preliminary argument to answer criticism. The critics are said to create arbitrarily for themselves a false target in the debate, in order to be able to destroy it more efficiently. Dworkin, too, ran
into this widespread countercriticism. In the text, I adhere to what seems to me to be the necessary
minimum elements of each legalist positivism from which others derive, such as the idea of the law
as a fact and not as a value and of the separation of moral right, the rejection of every metaphysical assumption (where for physics a legalist predisposition is intended); the objectivity or neutrality
of legal knowledge; etc. Naturally, the same attitude of self-defense is also a valid description of the
opposite front, of natural law. No present-day representative of the doctrine of natural law will ever
admit to being precisely defined by the person who intends to criticize him. Present-day positivists
of the law and representatives of natural law both show a certain tendency to hide themselves by
running away from classifications, even though the militant fronts seem easily recognizable.
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The practical impossibility of decision making exclusively inferred from the
law does not shake this conviction, though it does induce resentment against
the legislator and criticism of defects in legislation. Rationalistic aspiration to
a mechanistic jurisprudence stands firmly in place, as the product of a need for
certainty. To realize such an aspiration would require the legislator to carry
out his task remarkably well. This could be done if there were a specific law for
each individual case, if each law were clear and distinct, and if its content were
always in harmonious agreement with that of all the norms forming the law
as a whole. It is obvious that the nature of legislation is very far from meeting
this ideal. In the inflated legislative atmosphere of the present time, there is
indeed an abundance of defective, ambiguous, generic, contradictory, irrational, and incoherent laws. The “bad legislator” is, therefore, said to prevent
the judge from being a “good judge,” acting as the faithful enforcer of the law.
To be true to his calling, a judge should be able to work with “good laws”; but
where this is not possible a judge is forced to carry out a task that should not
be his, by looking for different criteria of decision making to fill out the law, to
correct it, and even to disregard it.
As a theoretical discipline, jurisprudence does not follow this line. Even in
Italy, studies of the nature of norms, research into legislative language, and
analytical jurisprudence have gone beyond the idea of a positivism of origins:
the body of law as a collection of acts of will of a personal legislator who has
the power of command that persists in time. Legal interpretation of the law
has been placed in an objective dimension, combined with a hidden aspiration
of going back in time (Jean Gerson in De vita spirituali animae in 1402 speaks
of the judge as the “geometer vel arithmeticus”;6 Gottfried W. Leibniz aimed at
a jurisprudence “more mathematico demonstrata,”7 but the Roman jurists
were already said to “calculate with legal concepts,” with the object of emulating the accuracy and formal nature of the theoretical sciences and, above
all, geometry and arithmetic. Consistent with this, the rougher aspects of the
“imperative concept” of law are overcome). However, uncoupling the law from
the personalized will of the legislator not only confirms the centrality of the
fundamental positivist postulate but also casts it in even bolder relief: the law
looms as an artifact, objectively in existence, before which the judge must be a
pure, simple mirror reflecting reality in order to give a clear, faithful image.
Notwithstanding the endurance of this postulate, theoretical jurisprudence
has rejected, indeed ridiculed, the idea of judging as the exclusive application
of the law by means of “deductions” relating to facts “subsumed” in a normative description. The logical scheme of the normative syllogism is by no means
abandoned but for a long time now the idea that the major premise (the norm
6
JEAN GERSON, DE VITA SPIRITUALI ANIMAE (1402). For information on the theories of Jean Gerson,
see RICHARD TUCK, NATURAL RIGHTS THEORIES: THEIR ORIGINS AND DEVELOPMENT 25–30 (Cambridge
Univ. Press 1979).
7
GEORG MOLLAT, MITTEILUNGEN AUS LEIBNIZ’ UNGEDRUCKTEN SCRIFTEN 21–22 (1893).
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to be applied) should almost never be completely determined by the law has
firmly taken over. To deal with the missing element, it is postulated that the
decisions of judges contain creative elements and are accordingly an expression not of the law but of a “policy of law.” This “discretion” of the judge
(to use Dworkin’s expression) is admitted as a principle and not only as the
consequence of the deplorable state in which legislation finds itself, as judges
would have it. It is, instead, the subject of theories of interpretation and of
application of the law that refer mainly to Hans Kelsen or to Herbert Hart,
remaining, therefore, within the orbit of orthodox positivism, albeit a critical
positivism rather than a merely naive one.
For Kelsen, every time the law is enforced it represents, on the one hand, the
application of laws bound by existing norms and, on the other, a discretionary
creation of new laws.8 In the development “by degrees” of the legal system, the
constitution’s initially generic limitation becomes progressively more stringent, culminating in a fully determined rule articulated in the decision of the
judge and in the law’s administration. Legal rules become increasingly and
ever more precisely codified, while the discretionary role of the interpreter is
correspondingly reduced to the point where it disappears. Gradually, the links
between the set of rules and its application to each concrete case becomes
tighter. According to this way of thinking, the creative nature of jurisprudence
depends on the language used in the different “degrees of development” of the
set of rules, or, in other words, on the structure of law itself. The structure of
the law and the discretionary power of judges fit together. In contrast, for analytical philosophers of law, especially those interested in the problems of legal
language, Hart’s description of the discretion of the judge is the most popular.9
The root of discretionary power is said to inhere in “the communicative reasons” connected to the naturally open texture of language, in general, and legal
language, in particular. Since legal language relies on general categories, it is
said to contain a halo of uncertainty at the outside edges forming around a linguistic “hard” core from which the judge cannot escape. This is supposed to be
the price paid for the use of general, abstract terms of classification, an
inevitable use in every form of communication regarding questions relating to
facts viewed categorically rather than as particular historically selected events.
It does not matter whether the indeterminacy of legal norms is ascribed to
structural reasons peculiar to the system, as Kelsen does, or to the nature of
legal language, as Hart does. Both theories converge in their assertion of
(a) the existence of discretion on the part of the judge who is said to operate
(b) pursuant to the norms proposed by the legislator in (c) the space that the
latter leaves “empty of law.”
8
HANS KELSEN, REINE RECHTSLEHRE 90 (1934). The English translation is HANS KELSEN, THE PURE
THEORY OF LAW (Max Knight trans., Univ. of California Press 1970).
9
H. L. A. HART, THE CONCEPT OF LAW 121–50 (Oxford Univ. Press 1961).
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These assertions clash with Ronald Dworkin’s theory of principles, which we
can sum in the following way. There is an “open space” (corresponding to (c) in
the previous paragraph) of norms but not of law, in the so-called hard cases (by
“hard cases,” we mean those that cannot be decided through the application of
a recognized norm, either because such norm does not exist, or because it is
unclear or not completely relevant, or in contradiction with other norms—
bearing in mind that cases can end up “hard” while initially seeming “easy,”
when social, ideological, or cultural conflicts muddy the waters in which the
rules are embedded, with the consequence that they become difficult to recognize). The law governing hard cases consists of legal principles (see (b), above)
that are placed “above” the norms proposed by the legislator, and it circumscribes the decisions of judges (see (a), above) by pointing them in a certain
direction. On this basis, the idea of judicial discretion may be contested but only
with the aid of an extensive concept of law that transcends the “normative
factors” (or in European parlance the “sources of the law,” the “sources du
droit,” the “Rechtsquellen”) formally grounded on what Hart calls the “rule of
recognition”10 or what others call “law of law” or “sources of the production of
law.” The refusal simply to consider the legal norms as written down in a public text of official rules reveals the antipositivistic nature of this theory and
highlights its reliance on a level of law lying deeper than the one carved out by
any legislator. It is within this deeper level of law, moreover, that judges can find
the best answer to legal questions left unsolved by the legislator’s law—though
this does not mean necessarily the clearest or most obvious answer.11
2. The dispute regarding principles
In Ronald Dworkin’s theory, principles occupy a central position (in point (b),
mentioned above). He affirms that they belong to the field of law, and that
there is a conceptual difference between principles and rules.
10
11
See id. at 89–96.
Although Dworkin’s doctrine is explicitly formulated to oppose the dominant positivist doctrine,
but juxtaposed against the assumptions of one of the princes of contemporary positivism, Herbert
Hart, their irreconcilability may be denied. It has been maintained that they actually deal with different things. See Carlos Santiago Nino, Dworkin and Legal Positivism, MIND LXXXIX 519 (1980)
and Baldassare Pastore, Dworkin Giusnaturalista? 61 RIVISTA INTERNAZIONALE DI FILOSOFIA DEL DIRITTO
1 (1984). On the contrary, Luis Prieto Sanchís asserts a contradiction, see Luis Prieto Sanchís,
Quattro Domande sulla Teoria del Diritto di Dworkin, in ANALISI E DIRITTO: RICERCHE DI GIURISPRUDENZA
ANALITICA 277 (Giappichelli 1994), together with G. R. Carrió, Una Reciente Propuesta de
Conciliatión entre el Iusnaturalismo y el Positivismo Jurídico, in LA TEORIA GENERALE DEL DIRITTO:
PROBLEMI E TENDENZE ATTUALI, STUDI DEDICATI A NORBERTO BOBBIO 361 (Uberto Scarpelli ed., Edizioni di
Comunità 1983). Positivism is said to be a descriptive approach, which relies on being able to
define the rules of the use of the word “law” by means of purely factual criteria; the interpretative
theory defended by Dworkin, on the contrary, is said to be a normative approach, engaged in drawing attention to the moral and political keys of a particular legal system in order to facilitate its
optimal application.
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It is difficult for legal positivists, and even more so for analytical philosophers,
to imagine these two points as inextricably linked. From a positivist standpoint,
these two points negate one another. By considering the nonanalytical formulation of principles to be a basic defect, as compared with the regulation of
human conduct through legal rules, positivists are disposed—as was the case
in Italy for many years after the 1948 establishment of a constitution full of
provisions enshrining principles—to debase principles. According to this criticism, principles amount to pure constitutional rhetoric, or to mere statements
of ideals or of ideologies, possibly influential in political debate but without
purchase on the activities of courts. By considering principles as imperfect
rules, while by the same token excusing imperfection as a tolerable defect in
legal rules, many have assimilated principles and rules and thus, by denying
the existence of a conceptual difference between the two, subjected principles
to the same regime as rules.
Both cases evince unacceptably dismissive attitudes, rendering homage to
anachronistic ideas and ignoring an essential qualifying dimension of present
law, with reference to which the expression “juridical principle-ism” has been
coined.12 In contrast, by now “law by principles” has, of necessity, surpassed
“law by rules” whenever we are confronted with controversial cases. With
certain “hot” subjects, when a plurality of needs for regulation and points of
view all worthy of recognition clash, law by rules is unsuitable to govern the
complexity of the situation, while law by principles can help. Significantly, law
by principles has developed, above all, in so-called pluralistic societies faced
with questions in which rights, interests, ideologies, and conflicting aspirations get tangled up together, eventually to be legitimized by contemporary
constitutions that are rigid and pluralistic (this suggests the fundamental
nature of contemporary “constitutional states” created in Europe to which
reference will be made later).
3. Adherence, distinctions, and diversifications
Dworkin’s doctrine of principles effectively manages to give a theoretical
account of the reality of judging and of the law that it implies, not only regarding the common law system from which it originates but also, more generally,
regarding the contemporary “constitutional state.” The possibility of drawing
on legal systems originally very remote from one another for purposes of
12
The expression “principle-ism,” as opposed to “normative-ism” (as a synonym for constitutive
law by rules), is used by Luis Prieto Sanchís, whose essay clarifies many issues and takes seriously
the challenge that law by principles presents to legal positivism. Prieto Sanchís rightly maintains
that legal positivism still has good, permanent reasons to stay, but, I add, on the condition that it
gives up what for centuries (or thousands of years—Creon against Antigone) was its strong point:
its anchoring in the rule proposed by the legislator. See LUIS PRIETO SANCHÍS, CONSTITUCIONALISMO Y
POSITIVISMO 65 (Fontamara 1997).
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understanding the nature of adjudication is a sign that the systems in question
are growing closer to each other, as well as proof of the acute explanatory
power of Dworkin’s theory.
If anything, it is positivistic concepts that alter reality because of their
rejection of a comprehension or comprehension in juridical terms of what does not
formally inhere in the rules. Moreover, contrary to their claims for objectivity,
positivistic concepts make for a false account of reality and thus ultimately
promote a merely judicial ideology.
That said, there are, nevertheless, aspects of Dworkin’s theory of principles—
particularly in connection with the normative aspects that accompany the
descriptive ones—that, while justified with reference to common law systems,
understandably give rise to problems and require further distinctions with
regard to continental legal systems based on different “principles.”
In short: with regard to the conceptual status of principles, or, in other
words, (a) their structure in relation to the rules of law and their functional
status, and (b) the work done in the process of adjudicating, I feel that a very
wide consensus is possible. It is, however, necessary to make a distinction with
regard to their matrix (c). Furthermore, concerning the content of principles
(d), where Dworkin’s theory becomes ideological, the Italian constitutional
context, and perhaps the European continental one, requires a different way of
thinking.
4. Conceptual status of principles of law
compared to that of values and of rules
Principles are in a position midway between values and rules as criteria of
action and of judgment. In the background of the analytical treatment of
these ideas lurk key questions about the source of legitimacy of juridical
review and of constitutional review, in particular, as well as of the separation
of powers, democracy, and the concept of the law.
4.1. Values and principles
A value, insofar as it is a criterion for action and not simply the result of an
evaluation, is the final goal that requires its realization through teleologicallyoriented activities (here I follow Jürgen Habermas).13 A value is valid if it
authorizes the action or the judgment directed toward the result, not as the
criterion for legitimate actions or judgments. The criterion of validity of an
action or judgment is its efficiency with regard to the result. Any means
is authorized insofar as it is functional. The value-result justifies any means,
and all means can, in diverse circumstances, be considered useful. Anything
13
JÜRGEN HABERMAS, FAKIZTÄT UND GELTUNG 309 (1992) (in German); JÜRGEN HABERMAS, BETWEEN
FACTS AND NORMS: CONTRIBUTIONS TO A DISCOURSE THEORY OF LAW AND DEMOCRACY (William Rehg trans.,
MIT Press 1996) (in English).
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goes between the beginning and the end of acting in pursuit of values, since
any value encompasses within itself any corresponding action and interest.
The noblest value can justify the most abject of actions: peace can turn into
war and freedom into mass slaughter. For this reason, he who parades values
in law is often a cheat. The rule of values is: judge and act as seems congruous
with regard to the goal you wish to reach. Acting and judging “according to
values” are indeed refractory with regard to regulative, objectively delimitative
criteria, since values cannot be traceable to reasons subject to rational controls. This point was clarified in the famous essay of Ernst Forsthoff on the
“Transformation of Constitutional Law,” written in 1959: values as such
(independently of their content) are incompatible with the needs of the rule of
law because they implicitly contain a totalitarian propensity to express an
uncontainable, uncontrollable vital concept of individual and collective existence.14 When Carl Schmitt wrote about the “tyranny of values” in 1960, he
meant not only to indicate bloodless ghosts struggling to set themselves up as
the only supreme tyranny but also to denounce the unlimited use of any
means in order to make them prevail.
The principle, on the contrary, is an initial goal that demands to be realized
by means of consequentially oriented activities. It has a normative content in
relation to action or judgment. The criterion of validity of action and judgment is the logical possibility of referring back to the principle. Acting and
judging “by principles” are intrinsically regulated and defined by the same
principle of which they are the consequence: ex principiis derivationes. The
maxim of the principle is: act in every concrete situation that is presented to
you in such a way that in your action a reflection of the principle itself is to be
found at work. It is like a block of ice that, in coming into contact with the concrete circumstances of life, breaks up into many fragments, in each of which
the same substance of the original block is to be found. Between the principle
and the action there is a calculation of the appropriateness in the concrete
case that renders the second one predictable, at least in terms of the direction
it will take. Principles can easily take root in the rule of law; indeed, the idea of
the rule of law itself is the synthesis of numerous principles that express a
moderate, rational concept of individual and collective existence.
Value and principle are ideas that are, from many points of view, antithetical
to each other. Yet they have a common core; both refer to goals, for example,
the human person, life, nature, culture, art, or, again, security, economic
expansion, welfare, the power of the state, the nation, and even the race. This
explains the confusion between the two concepts, the almost always confused
use of the two terms, and the criticism that is frequently directed against the
second (principle) with arguments strictly applicable to the first (value).
14
See Ernst Forsthoff, Das Umbildung des Verfassungsgesetzes, in FESTSCHRIFT FÜR CARL SCHMITT 35
(Duncker & Humblot 1959). See also Ernst Forsthoff, Zur Problematik des Verfassungsauslegung, in
BEITRÄGE ZUM ÖFFENTLICHEN RECHT (1961); CARL SCHMITT, DIE TIRANNIE DER WERTE: ÜBERLEGUNGEN EINES
JURISTEN ZUR WERT PHILOSOPHIE 16 (1960).
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The goals of both, indeed often the same goals, can be incorporated into
propositions of value or into propositions of principle, even though they may
be formulated differently. Values (positive and negative) are expressed by
means of predicates relating to acting, “felt” subjectively (good or bad; just or
unjust; useful or useless); principles, through predicates practically oriented
toward objectively grounded “reasoned” acting (intangible, inviolable, responsible, punishable, etc.). This difference of expression highlights the radical
difference between the two: a Nietzschian ethos in the first case and a Kantian
approach in the second.
From another point of view, however, the distinction between the two is a
matter of subtle difference, making it possible to treat the same goal as a value
or as a principle, but with diametrically opposite consequences. For example,
appeal to the paramount importance of life, as a value, can be used by fanatics
to justify violent actions against physicians who perform abortions: the
protection of life as a principle, on the other hand, fosters discussion regarding
the rational consequences implied by the principle in relation to the voluntary
termination of pregnancy, depending on whether it can be considered, under
different circumstances, a matter of choice or of necessity. Much of the criticism directed at a “jurisprudence of values” should not be leveled against a
“jurisprudence of principles.” But the fact that this happens can be explained
by unwarranted confusion of the two.
4.2. Principles and rules
Principles and rules can direct actions and decisions in certain determined
circumstances, but the nature of the direction that comes from them varies.
Rules, according to Dworkin’s now-famous formula, are valid in the logic of
the “all or nothing.” They are cogent and one either respects them completely
or clearly violates them. In view of the facts they establish, certain predetermined consequences follow from them. In other terms, it is the model of legal
norms Hans Kelsen expresses in his famous hypothetical imperative formula: if
it is a, it must be b, with no margin for discussion.15
Principles operate differently. They do not indicate legal consequences that
must follow necessarily when the predictable consequences are posited;
instead, as axioms of the legal system, principles affirm a reason that, in the relevant cases involving principles, propels in a certain direction, albeit without
designating a specific action or decision. If a certain principle is part of a given
legal system, it is necessary for it to be taken into consideration as a criterion for
acting and for deciding, but we do not yet know what the action is or the decision that will come from it, even though we can predict the appropriate line of
argument capable of justifying such action or decision.
Principles, like rules, are norms, because they mark a direction for action
in the terminology of Robert Alexy adopted here: norms denote the genus,
15
KELSEN, supra note 8, at 23.
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principles and rules, the species.16 Principles, however, unlike rules, are norms
without the case in point (or determination of the fact or “Tatbestand”).
Principles are not in themselves capable of being expressed in the form of the
hypothetical imperative of Kelsen. If the protection of personal dignity (art. 2
and 3 of the Italian Constitution)17 is posed as a principle, it does not indicate
under which circumstances, in the presence of what behavior, it is endangered
or violated, and consequently it does not mandate any specific protective measures. Does the law that states that immigrants from countries outside the
European Union must be fingerprinted at a police station violate their dignity?
Should it be invalidated? Or: does the principle of the inviolability of personal
liberty (art. 13 of the Constitution)18 encompass going to a stadium to watch
a soccer match, and, if so, is the norm the police invoke to stop violent fans
from going to soccer stadiums a relevant limitation? If it is (as the Italian
Constitutional Court has established), then it has to be taken with all the constraints on the limitations of personal freedom imposed by the Constitution.
A principle is not simply a very general rule. If this were the case, the positivists who reduce legal principles to rules would be right. Consistent with this,
not all examples of principles may be pertinent. Dworkin is able to derive
from the proposition that no one should take legal advantage (for example, by
inheriting) of an actual crime (for example, the murder of the testator) a
“principle” of legal civilization that is valid for all legal systems.19 A similar
“principle” may furnish an argument in favor of those who deny the existence
of the conceptual difference between principles and rules that Dworkin
emphasizes and on which he bases his doctrine of adjudication. The actual
“principle” that lies behind this supposed principle could be expressed as
follows: the law cannot allow taking advantage of one’s reprehensible actions.
If the proposition that no one may take legal advantage of an actual crime
were a principle, then principles would only be very general rules. Such a
proposition would boil down to a sum of simple rules corresponding to the
number of acts defined as crimes in a certain legal system and to the aims of
life that are subject to legal protection as rights, claims, and legitimate interests. The fact, then, that this proposition is in certain cases contradicted by specific rules (for example, the one that recognizes the acquisition of property by
prescription in favor of the one in possession, even if it be in bad faith) does not
16
See ROBERT ALEXY, THEORIE DER GRUNDRECHTE [THE THEORY OF BASIC RIGHTS] 71 (Nomos
Verlagsgesellschaft 1985) (in German). The English translation is ROBERT ALEXY, A THEORY OF
CONSTITUTIONAL RIGHTS (Julian Rivers trans., Oxford Univ. Press 2002).
17
ITALY COST. arts. 2, 3.
18
Id. art. 13.
19
For instance, the Italian Constitutional Court has applied this “principle” in its 1995 decision
concerning violation of a town’s zoning laws. See GESVIT v. Comune di Massa Lubrense, Regione
Campania, Corte Cost., cass., 15 Dec. 1995, n. 529, Giur. Cost. 4405.
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in the least imply that it is not a rule. It is a general rule that gives way to a
more particular rule according to the maxim lex specialis derogat generali.
The interesting logical difference, from a practical standpoint, is that in
order for the principle to work in practice, its “concretization” is required; in
other words, it must be reducible to a formula containing a case in point relevant to a historical event and the consequence that must derive from it. The
concretization of the principle takes place in the course of the work either of
the legislator, through a rule that looks to future events, or of the judge,
through a decision that looks back to past events. In certain determined fields,
this second option is expressly excluded. That is predominantly the case in
criminal law, where it is preferable that the legislator establish crimes and punishment through prospective and predictable rules. Beyond this exception,
however, rules and principles often operate jointly or in parallel fashion.
It would be incorrect to speak (a) of interpretation of the principle (by the
legislator or judge) or (b) of the creation of a new law (legislative or judge
made) in relation to the “concretization” of principles.
(a) It is not interpretation—in the sense in which this term is used by jurists—
because the wording that expresses legal principles contains very little to be
interpreted. Principles are often expressions “based on constantly new, thirdor fourth-hand reception,”20 but they are not for this reason less venerable in
that they go back to historical tradition (e.g., habeas corpus) or philosophical
contexts of meaning (e.g., the human person), which, rather than being interpreted by means of the analysis of the language contained in a text, as is the
case for rules, must be understood in terms of their ethos. As is often noted,
law by principles inevitably involves an “ethicalization,” and, for this reason,
one may say in a nutshell that whereas rules are to be obeyed, principles must
be adhered to.
(b) The concretization of principle is not the creation of new law, in the sense
of an extension of the field of action of the law to new subjects, relationships,
or situations. The case already falls under the law. In the presence of a pertinent principle, the judge cannot invoke the lack of a law to reject a question as
lacking legal relevance. He must, on the contrary, reason constructively about
the case, in the light of the relevant principle and from this position give an
answer. It will not be a syllogistic operation, but a form of reasoning
irreducible to formulas and made up of inferences and deductions of various
different kinds. It would be a forced argument to say that principles are incomplete rules, i.e., defective rules, as if the ideal legal system had to be made up
exclusively of rules. Actually, principles and rules are distinct ways of making
norms that in practice stimulate different practical attitudes. If the legal system were just composed of rules, it would be like a railway schedule and jurists
would be like railway workers following a set path according to pre established
20
RUDOLF SMEND, VERFASSUNG UND VERFASSUNGSRECHT 150 (Duncker & Humblot 1928).
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times and places. Luckily, law does not correspond to this positivist ideal, and
the job of judges and of jurists is not akin to that of railway workers.
4.3. Values, principles, and rules
It is possible to place rule, principle, and evaluation of worth in a sequence of
inferences. The rule that forbids torture presupposes the principle of the inviolability of the dignity of the person and the latter is grounded on human
personhood as a value. The rule that punishes kidnapping presupposes the
principle of the inviolability of personal freedom, itself emanating from freedom as a value. The rule establishing punishment for murder derives from the
principle that no one should take the life of another, and this principle refers
back to life as a value. The rule that prescribes the punishment of a thief presupposes the principle of guarantee of property, itself dependent on property
as a value. Even for apparently technical rules, such as those regarding vehicular traffic—a familiar topos (or commonplace) in these discussions—the same
applies. The rule requiring automobiles to circulate on the right (or on the left)
presupposes the principle of necessary uniformity in the flow of traffic in view
of the safety of people as a value.
In the abstract, it can be said that there is no rule that does not correspond
to a principle, and there is no principle that does not connect to a value. The
principle is the medium in which we find a moral opening to the value and a
practical opening to the rule. In concrete terms—in other words, in relation to
the particular historical situation of a legal system—one can encounter the
breaking of this chain: for example, a rule can contradict a principle in force or
there might not be a principle that justifies it; or a principle could be incompatible with prevailing values. In these cases, the rule is without justification
and, even before it is declared unconstitutional (when an existing constitutional norm incorporates the principle or the value that has been violated), the
rule is intrinsically unreasonable, arbitrary, or obviously unjust—all are
expressions found in decisions of the Italian Constitutional Court, which does
not hesitate to invalidate laws on these grounds. This means that the connection of congruence between value-principle-rule is constitutive of the validity
of the law, and thus is an axiom that even precedes constitutional law; it is
something that comes before the very power to make a constitution. A constitution can do many things, but it cannot set out the absurd, or, at the same
time, affirm that a norm is arbitrary but nonetheless valid.21
The positivism of rules professes to obscure these founding links, which
are substantive and inextricably related to law. Positivism would have the
judge placed exclusively at the service of the rule compelling its application for
the sole reason that it has been produced according to a rule of recognition.
21
See ROBERT ALEXY, BEGRIFF UND GELTUNG DES RECHTS (K. Alber 1992) (in German). The English
translation is ROBERT ALEXY, THE ARGUMENT FROM INJUSTICE (Bonnie Litschewski Paulson & Stanley L.
Paulson trans., Oxford Clarendon Press 2002).
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The attempt to reduce the material invalidity of the laws to a formal invalidity,
an attempt that constitutes a characteristic and surprising fact of the “positive
morphology” of Hans Kelsen for those who do not reduce the law to a rule,22
is explained by the moral implications that the moral dimension of the validity
of the law involves. At the same time, it explains the readiness to recognize that
the judge himself, in the case of ambiguity of the positive rules, has a discretionary power that he can use freely, in other words, arbitrarily: a paradoxical
and schizophrenic result for a doctrine that, in origin, aimed at reducing
jurisprudence to a mechanical function and the judges to bureaucrats.
Positivism is thus forced to contradict its own premises in order not to
betray its original commitment to keep law and morals separate or, in John
Austin’s words, to distinguish properly called human laws from those which
are improperly called the laws of positivist morality,23 or, put otherwise, to distinguish, for example, the judge from the confessor or the criminal from the
sinner. This need for distinction is the strong point of positivism and its theoretical assertion is its greatest claim to merit. Furthermore, it is often asserted
that criticism of positivism causes one to fall into this dangerous mingling of
law and morality. As will be discussed in section 6 below, the theory of principles is neither an attempt at “the moralization of the law” nor is it the “legalization of morality,” as some have recently charged.24 Instead, the theory of
principles is an attempt to establish a bridge between law and culture.
5. The functional status of the principles of law
Unlike the all-or-nothing character of rules, which makes them susceptible to
an “absolute” linkage to values, principles are more nuanced. Principles have
a weight, or importance, that detaches them from the value of which they are
the expression. Moreover, since principles establish goods susceptible of being
realized, defended, promoted, etc., they are subject to the logic of the possible.
Within the ambit of that logic, any given principle will encounter other conflicting principles, prompting a need for harmonization, which necessarily
requires a reciprocal “relativization.” Thus, existing principles must eventually
become relativized, but this does not mean that they cease being valid principles. Rules, in contrast, are either applied in full or are violated; there is no
middle ground. Dworkin’s theory stresses this crucial point, which explains
the success of “law as principles.”
22
See Hans Kelsen, La garantie juridictionnelle de la Constitution, 35 REVUE DU DROIT PUBLIC ET DE LA
206 (1928).
SCIENCE POLITIQUE
23
24
AUSTIN, supra note 5, at 1–30.
The accusation of the “moralization of the law” and the “legalization of morality” is, for example, in Sanchís, supra note 11, at 287.
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Our societies do not content themselves with simple principles susceptible of
producing “law by rules.” Ours are complex societies with multiple, differentiated moral postulates. These lead to diverse and even clashing legal axioms,
making it unlikely that the principles we endorse can produce sets of univocal
and mutually consistent rules. While the weight of each “ingredient” of our
moral universe may be different for each of us, depending on our political inclinations, most of us want a free society but also social reform; equality before
the law but also substantive equality concerning essential needs; general but
also special legal norms; negative rights as well positive rights; rights of individuals and group rights; claims of conscience (for example, for the use of
resources offered by biotechnology regarding the subject of artificial insemination or of assisted suicide–euthanasia) but also the stability of social structures and the protection of the weak; the defense of national identities without
destroying different cultural identities; the protection of traditional forms of
social life, such as the family, but also the recognition of alternative life styles;
promotion of the individual but also restrictions for collective purposes, such
as preservation of the environment; strictness in application of the law but also
compassion to mitigate its more rigid consequences; individual responsibility
in the construction of one’s own existence but also collective intervention in
the support of the weakest; order but also social spontaneity, etc. I do not
believe that the pursuit of multiple objectives simultaneously is a symptom of
moral disorder, as supporters of a strong public ethic for well-tempered human
communities argue.25 I tend to see, instead, the influence of a rich, centuriesold history that prompts individuals and societies to organize their cohabitation as human beings in certain complex ways. In any case, we are dealing
with facts that can be ideologically contested but can only be combated in
practice through the univocal legal regimes of consistent rules typical of an
authoritarian order.
Legal principles, on the other hand, owing to their flexible capacity for interacting with each other, can fulfill the requisite integrating function that rules fail
to achieve, given their logic of reciprocal exclusion. Principles provide the pluralist societies of our time with various forms of legal expression and allow for
their organization as a “constitutional state.” Principles belong in the constitutional state, which cannot manage without them. Moreover, even constitutional
norms formulated as rules must often be understood as principles in the
jurisprudence of constitutional courts, in as much as they must be interpreted
as relativized due to the constraints of the logic of the “reasonably possible.”
As used here, the term “constitutional state” is not meant to be limited to
those states that have written constitutions or in which judges protect fundamental rights against infringement by the political branches. What written
constitutions and judicial protection of rights indicate, however, are
25
See ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (Univ. of Notre Dame Press
1981).
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cultural-historical conditions in which social unity remains problematic and
in which the integrity of the individual members of society must be given constitutional recognition against the force of the majority. Constitutional principles and their multiplicity reflect this historical situation. They do not produce
a unity statically realized, but a unity to be achieved dynamically. The requisite
principles come into play through their combinatory possibilities, and legal science is challenged to produce the “practical concordance” of discordances,26
which requires pliable conceptual instruments, unusual among jurists accustomed to the categories of legal positivism (the ones which E. Denninger calls
the “Schlüsselbegriffe”),27 and, in particular, the use of “balancing.” Indeed,
principles, not rules, are the norms susceptible to being placed on scales, and
this explains their success in our time.
The experience of the Italian Constitutional Court on this point is significant owing to the remarkable spread of these decisional techniques. Many
constitutional judges are still suspicious of these techniques, since they view
them as abusive in as much as they seem to foster improper crossovers into
politics. Whereas these techniques pose many problems, as will be discussed
below, contemporary constitutional systems cannot do without them; it is
impossible to return to a jurisprudence exclusively “based on rules.” That
would involve an arbitrary amputation of the Constitution, which owes its
validity to its ability to remain a cohesive whole.
It is enough to take some examples of clashing principles that have had to
be reconciled: equality between spouses and safeguarding the unity of the
family, in the case of punishment of adultery on the part of the wife; the guarantee of personal status and the possibility of ascertaining the natural mother
and father; protection of the health of the woman and of the life of the fetus
in the case of abortion; freedom of enterprise and consumer protection;
private property and the rights of socially disadvantaged individuals, such as
farm workers or flat owners; freedom to organize enterprise and the handicapped’s right to work, of whom a certain number must be employed; the safeguarding of the defense in trials and the functional character of the same trial
with regard to its ends; freedom of the press and personal dignity; the protection of privacy and the interception of communications for the prevention of
crimes; pluralism of the media and the guarantee of the right to enterprise.
6. The matrix of principles
Arguments based on principle are not unknown to positivist jurists. They
know that they cannot decide on each occasion only on the basis of expressly
26
An expression used in KONRAD HESSE, GRUNDZÜGE
DEUTSCHLAND 127 (Müller 1982).
27
DES
VERFASSUNGSRECHTS
E. Denninger, Vefassungsrechtliche Schlüsselbegriffe, in FESTSCHRIFT
SECHZIGSTEN GEBURTSTAG 279–98 (Luchterhand 1985).
FÜR
DER
BUNDESREPUBLIK
RUDOLF WASSERMANN
ZUM
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formulated rules. They indeed appeal to “general principles of law” whenever
a case to be decided does not fall within the provision of a specific rule; in other
words, in the case of a “gap” in the law. From this point of view, the Italian legal
system (art. 12 of the preliminary provisions of the civil code) states that if a
case is in doubt, “it should be decided according to the general principles of the
legal system of the State,”28 and therefore with the obligatory clarification
that the seductions of ius naturale must be avoided. This eventuality does not
contradict the postulates of legal positivism: the principles in question are considered to be implicit norms, existing in a latent state. Their premise is the
rationality and consistency of the legislator, who, by definition, proceeds from
these principles and takes from them norms, “setting a seal on them.”29
The interpreters can reconstruct principles from the observation of common
elements in single rules, that is, by means of inference from the sum of the
particular rules. The legislator deduces, the interpreter infers. These principles
of law are the expression of the logical unity of the system, and this unity is
regarded as a fact that can be recognized without creating anything new,
simply by laying bare the reasonableness immanent in the system. This type
of general principle of the law is endowed—to use Betti’s phrase—with
“normative excess,”30 since it is capable of extending the confines of the law to
cases not expressly stated, but always, nonetheless, a product of result, not an
original fact.
This way of conceiving principles was valid in the legal case of simpler
systems, such as those of liberal societies of the nineteenth century or authoritarian ones of the twentieth (the Italian civil code is still the one issued in
1940). Such a conception, however, cannot be valid nowadays. The interpreter who ventures in search of consistent legal principles risks encountering
contradictions and political conflict translated into open-minded, inconsistent,
and unstable legislative norms. Accordingly, principles, which at one time
were the ultimate expression of the logical unity of the legal system, are now
called upon to perform a constitutive task, namely the articulation of a common normative matrix allowing for the dialogical unity of the law of complex
societies, supported by the institutional architecture of the constitutional
state. Because of this, principles cannot originate in the rules, but must have
their own autonomous origin and validity.
Principles with a constitutive function are explicit principles, and their
natural position in the framework of constitutional states is in the constitution
itself. The pluralist Constitution of Italy, for example, is replete with principlebased regulations. Constitutional principles as a constitutive force of pluralist
systems are no longer called into play only when there is a gap in the rules.
28
C.C.
29
R. Sacco, I principi generali nei sistemi giuridici europei, 96 ATTI DEI CONVEGNI LINCEI 165 (1992).
30
EMILIO BETTI, INTERPRETAZIONE DELLA LEGGE E DEGLI ATTI GIURIDICI 316 (Giuffrè 1971).
art. 12.
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They are always at work, even where there are rules, either as the criteria of
the rules’ validity or, whenever possible, as semantic vehicles of the legal
system, shaping the meaning of rules by means of what is called “conforming
interpretation” (in German, verfassungskonforme Auslegung).
Thus far, legal positivists have little to complain about. As constitutional
principles are, in fact, proposed by a legislator, the constitutional legislator,
that ought to be sufficient for the positivists, even if it goes against their
preference for law “by rules,” and even if it somewhat counters their theoretical postulates (the law as a fact, the separation of the law from morality,
the neutrality of legal science, etc.). Indeed, according to “positivist dogmatics” nothing prevents a constitution from subordinating the validity of a
norm not only to the founding formal requirements (the “pedigree,” according
to Dworkin’s expression) but also to certain content-based directives, such
as respect for the principles of freedom and equality. Contemporary constitutions, though full of such content-based directives constraining the law,
have not in themselves posed any significant theoretical threat to positivist
convictions.
Difficulties arise, however, (a) when there is a question of attributing practical value to the principles, and (b) when it is necessary to make them coexist
on a practical level in case of conflict.
(a) Principles are not norms closed in on themselves and are not even—as
“critical” positivism would have it—norms that call into play the discretion of
the interpreter because of their communicative imperfection. They refer to
something beyond themselves and are, therefore, open by nature, not by
defect. Dworkin expresses the nature of principles through the distinction
between concepts and conception. The American Constitution forbids “cruel
and unusual punishment.”31 But what does it mean by “cruel” or “unusual”?
Are certain particular ways of carrying out the death penalty cruel? The
Italian Constitution protects the family as a “natural association.”32 Is divorce
or living together without the bond of marriage compatible with this concept
of the “natural,” or are they affronts against nature? Everybody supports the
principle of human dignity, but does dignity require or forbid recognizing the
right of terminally ill patients to euthanasia? The constitutional principle of
equality—the most pervasive of all principles—requires equal treatment of
equals and unequal treatment of unequals. But what is to be considered
relevant in determining equality and inequality and, therefore, what ought
legitimately to be taken into consideration? It depends precisely on the
conceptions one has of the relevant concepts. The problem cannot be avoided.
The “original interpretation” of the constitution, whatever it is, cannot solve
31
U.S. CONST. amend. VIII.
32
ITALY COST. art. 29(1).
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this problem, not to speak of all the cases in which new problems are posed,
where the search for original intent is bound to remain futile. In short, the
solution to the problem at hand cannot be found in the norm that expresses a
principle or through “interpretation,” as that term is used in relation to rules.
A principle can only fulfil a practical function by drawing on elements outside
of itself. But where must one look for that? That is the question that confounds
the positivists.
(b) In the case of a clash of principles, the difficulty cannot be overcome by
means of the usual criteria used to resolve antinomies between rules, such as
lex superior, lex posterior, or the lex specialis. These criteria lead one to prefer one
rule over another, completely sacrificing (in conformity with the all-or-nothing nature of rules) one rule for another. This approach cannot work, however,
for purposes of validating the principles of the constitutional state. Such principles must all coexist, as they all guarantee protection and are all consecrated
in the Constitution. This model of coexistence implies composite solutions that
cannot be found within these principles themselves but above them, and, so to
speak, straddling them. I do not think that the criterion of “maximization” of
the goals protected by principles33 or its mirror image, which is perhaps preferable, of the “minimization” of departures from the same goals, can be stated in
some positivist rule leading to predetermined results.
This leads to a decisive point for understanding the practical dimensions of
the system: positive law with its rules and its principles could not function
without metaprinciples of law. The courts—and, above all, the Constitutional
Court—would be powerless as legal interpreters without them.
These unwritten principles of the Constitution cannot be subjected to the
formal tests of recognition and validity (Dworkin’s “pedigree”) the way positive
norms can. These principles’ criteria of validity can only be material and pertinent to their content rather than based on matters of origin or form. This
undoubtedly angers positivists. How can one introduce into the legal vocabulary, and in such an important position, norms that are so indeterminate as to
be ultimately left to the discretion of judges?
It is not by complaining about this reality that the positivists will be able to
change it. The question is not whether it is a good thing that judges must refer
to something above and beyond positive norms. Instead, the question arises
from the very fact that it is impossible to avoid such a reference for the practicing judge (and I speak from experience). When judges consider difficult cases,
they must concentrate on what stands above legal norms, even if they ignore
that afterward when they have to write a reasoned opinion that provides the
justification for their decision. By obscuring this aspect of the judge’s work,
positivists relegate the resolution of difficult cases to the pure and simple
33
See ALEXY, supra note 16, ch. 3.
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subjectivity of the judge. This leads to the perverse result that by wishing to
eliminate uncertainties, the positivists simply conceal them. On the other
hand, by focusing on the problem, it may be possible to gain sufficient insight
to avoid, or at least reduce, the misuse of discretion. For this reason, Dworkin’s
critics are wrong when they claim that his efforts to elaborate a theory that
would circumscribe the discretion of the judge leads to the opposite result,
thus depriving the law, at its most fundamental level, of the possibility of
achieving certainty through the application of the rule of recognition. This
criticism, contrary to what the positivists believe, does not boost their case. It
may be true that Dworkin’s principles lead to uncertainty, but it is clearly not
true that positivist interpretations of the law foreclose discretion. Quite the
contrary, it is precisely the theory of sophisticated positivists that proclaims
that, when faced with difficult cases, in the end it is the judge standing alone
who has to make choices.
Dworkin’s handling of the question regarding the matrix of unwritten principles must perforce not be formal. He resorts to his Hercules who comes
onstage with his superhuman abilities amid the “institutional supports” the
human community provides in order to underpin the rules it has given itself,
the “normative conditions” and objective situations surrounding the sense
of social duty, and the array of constitutional theories, interpretations of
statutes and precedents, standards of political morality, and imperatives of legal
continuity, etc.
The refusal to stop at the law as it is posited has led to accusations that
Dworkin is a proponent of natural law or of “moral cognitivism.” This accusation is undeserved and the product of gross oversimplification. Nothing in
Dworkin’s theory is beholden to natural law, be it grounded in the nature of
things created by God or in the universal reason of men. Instead, Dworkin
looks to, in Kant’s words, the “rich lowland of experience.”34 Thus, prepositive
law, which Dworkin, I believe, regards as including something like natural
rights law as conceived by members of society, is empirically assumed as an
existing—or perceived—fact, one constitutive of the moral categories in force
in society, alongside all the other relevant factors (political doctrines, ideas of
social usefulness, institutional compatibilities, etc.). To the extent that natural
rights law is involved, therefore, it does not put forward hegemonic claims but
only demands to be considered as the equal of other kinds of law. In any case,
Dworkin does not refer to a general, compulsory order that an external authority has imposed on society.
As I see it, Dworkin’s position could best be described as a “culturalist” one.
His theory does not place the root of law either in the normative force of
nature or in society. The normative force of the principles that provide support
34
The Kantian expression “das fruchtbare Bathos der Erfahrung” can be found in EMMANUEL KANT,
PROLEGOMENI AD OGNI FUTURA METAFISICA 299 n.27 (Piero Martinetti & Massimo Roncoroni eds. &
trans., Rusconi 1995).
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to positive laws is, instead, drawn from directive elements that are cultural
in nature. To use an Italian characterization, this could be defined as the
“material constitution” that forms the basis of the positive formal constitution.
In this way, Dworkin’s theory of law breaks the scaffolding that legal positivism has always tried to erect around the law in its ambition to render it independent and impermeable to the influences of context, thereby “purifying it,”
according to Hans Kelsen’s radical aspiration expressed in his Reine
Rechtslehre.35 Thus, the good jurist, according to the theory of principles, is not
then merely the person with expertise in law and knowledge of precedents but,
rather, the person who combines this expertise with participation in the
cultural life of his or her society. The principles with which the jurist deals,
therefore, function as a connecting bridge; they produce culture and are the
products of culture.36
For the European jurist, this realization can bring to mind rather unpleasant associations. How can one avoid thinking about the spirit of German legal
Romanticism or of the scientific-spiritual interpretation of law first articulated
by Rudolf Smend?37 Or avoid fearing the politicization of law? In a word: How
can we avoid the demise of a properly legal dimension of collective life that
stands as a barrier against boundless political and social power?
These developments do not have to be seen as threatening, provided they
are placed in their proper cultural context. Moreover, ensuring that these
developments are oriented in the right direction is the responsibility of legal
science—a science to be entrusted to jurists who are mindful of their cultural
role and cognizant of their professional identity. Because of this, a finely tuned
theory of law as an integrating part of the culture of the time is an indispensable element of any comprehensive legal theory. Without this element, not
even Hercules could carry out the task that Dworkin assigns to his ideal judge.
In any event, it would be a big step in the right direction if jurists became
aware of this primary social responsibility that they bear both as individuals
and as members of a scholarly community.
In a famous essay, Dworkin compares law to literature, by focusing on their
common roots; on the similarity of their formative processes by means of
combinations of elements as links in a chain; on their respective normative
force, in part similar and in part distinct; and on the respective social responsibilities of jurists and of men of letters that also are in part similar and in part
different.38 Legal positivism, with its completely mechanical vision of law,
would reject these comparisons as bizarre. Nonetheless, these comparisons are
35
See KELSEN, supra note 8.
36
An attempt at a comparison between Dworkin’s doctrine of principles and the Italian doctrine
of the constitution in the material sense is in Bartole, supra note 4.
37
SMEND, supra note 20.
38
DWORKIN, A MATTER OF PRINCIPLE, supra note 3, at 179.
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highly significant in the context of an antipositivistic conception of law; they
provide a means for tackling the crisis of legal interpretation in our time.
7. The content of principles
Regarding the determination of the content of principles, one may refer to
Dworkin’s concept of the “integrity of the law,”39 which refers to the need for
synchronic and diachronic unity: synchronic, in the sense of the systematic
nature of the law; diachronic, in the sense of the carrying out of the legal
system as a development and not as a contradiction. Unity is a virtue, indeed
the virtue as much for the legislator as for the judge. This can be summed up in
the formula, which is easily expressed but difficult to put into practice: similar
cases should be dealt with in a similar fashion. Moreover, similarity should
prevail both in the present, and in the relationship between past and present.
Legal conservatism? Dworkin’s theory of principles is often accused of
betraying its initial intent, of circumscribing the discretion of the judge, and,
instead, of opening up the way for creative invention by judges. This accusation
is based on the totally unfounded premise that the rule-based jurisprudence of
positivists can preserve strict adherence to law as it stands. The theory of law
as principles, on the other hand, requires constructive work on the part of the
judge, who must struggle with the mass of normative materials in order to
mesh them with the cases to be decided. This work, however, is reconstructive,
not creative, and therefore Dworkin’s judge is not authorized to be an
“activist,” to create new law in dealing with new cases. The judge’s task is not
to “invent” new rights and obligations but to “discover” or “reveal” the rights
and obligations of litigants. The accumulated normative materials (laws and
precedents) constitute a weight from which judges should not be able to free
themselves in order to chart new paths. From this point of view, Dworkin’s
theory is certainly a conservative one, focused on maintaining existing law
(which, moreover, justifies resistance in the name of principles against violations fostered by political majorities). All the same, all the other elements mentioned above put pressure on the normative material, standards of political
morality, normative conditions, and objective situations of social duty. They
imbue not only the process of legislation but also the work of courts and of
legal science with a spirit of transformation, adaptation, enrichment, and
purification of law.
Integrity also requires that individuals be treated “as equal subjects,” as
equals, as individuals worthy of the same respect and consideration, or, in other
words, as legal subjects endowed with the same standing. This idea of equality
contrasts with that of egalitarianism, which focuses on equal distribution of
39
RONALD DWORKIN, FREEDOM’S LAW: THE MORAL READING
(Harvard Univ. Press 1996).
OF THE
AMERICAN CONSTITUTION 81–83
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collective goods. In rejecting the possibility of incorporating the latter
substantive conception of equality as a principle—in Dworkin’s terminology,
the claim to be treated (not as equals, but) equally40—Dworkin’s theory of law
belongs to the liberal legal tradition. It recognizes human rights, but only in
their individual dimension and in terms of protection against the misuse of
discretionary power. It does not recognize social rights among the principles of
the legal system, that is, rights that require the launching of public policies
to promote the welfare of, and opportunities for, socially disadvantaged individuals, which would thus require a differentiated system of law, liable to
compromise the treatment of all as equals.
More precisely, the task of promoting the social good, of producing collective goods, and of distributing them equally is not a legal task but a political
one. The powers of the courts must not be used for these purposes. It is not up
to judges to make policy arguments. They must ascribe rights and wrongs on
the basis of rights and obligations, without directly pursuing the general ends
of utility or of justice. In other words, it is not up to judges to decide in the
name of society as a whole but only in the name of individual rights implicated
in a controversy between individuals. To appeal to considerations of social
welfare or of a “just society” would lead to bending laws to political considerations, thus subordinating the individual to society. “Affirmative action” or
“reverse discrimination” leads to a suspect principle that is difficult to justify in
terms of the imperative to treat all as equals, even if this is done in pursuit of an
end that is hypothetically good. Dworkin’s responses to the decisions of the
Supreme Court on this issue reflect this difficulty.
The European constitutional tradition is, however, very different.
According to the classic political metaphors of the scales and of the clock,
studied with great erudition in Otto Mayr’s book,41 Dworkin’s rights thesis falls
within the metaphor of the scales, requiring subjective positions to be
balanced through the work of the judge. Continental European constitutionalism, on the other hand, is based on the idea of the constitution as defining,
in broad terms, the general order of society through principles of substantive
justice. These principles define the position of individuals within the whole,
and not only vis-à-vis other individuals.
The constitutions in force in Europe contain numerous provisions that
enshrine principles and that do not directly concern individual rights but
rather require the latter to conform to general interests. Article 3 of the Italian
Constitution, for example, proclaims and defines two concepts of equality in a
programmatic way. First, legal equality (“all citizens have equal social dignity
and are equal before the law, without distinction of sex, race, language,
40
41
See id. at 83.
See OTTO MAYR, AUTHORITY, LIBERTY
Hopkins Univ. Press 1986).
AND
AUTOMATIC MACHINERY
IN
EARLY MODERN EUROPE (Johns
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religion, of political opinion, of personal and social conditions”),42 in the sense
adopted by Dworkin; and, second, as the duty of the public powers to provide
equality in the distribution of collective resources (“it is the task of the
Republic to remove obstacles of a social and economic kind, which, by limiting
the freedom and the equality of the citizens, prevent the full development of
the human person and the effective participation of all the workers in the
political, economic and social organization of the Country”).43 A list of social
rights follows this programmatic description, such as the right to education, to
health, to social assistance and security; these social rights constitute both
guidelines for government action and rights enforceable by the courts and ultimately by the Constitutional Court. These social rights obviously require more
than equilibrium among individual rights guaranteed by the courts. They also
require pursuit of public policies, which, while also guaranteed by the courts,
are likely to limit individual rights. The most characteristic examples include
the constitutional constraints imposed on corporate law, which—as a whole—
may not be contrary to “social usefulness” and may be directed toward “social
ends” (art. 41), and the right of property, which is recognized but may be limited in order to guarantee its “social function” (art. 42), while property rights in
land are subject to limits that guarantee “equitable social relations” (art. 44).44
These examples draw a bare outline, but they demonstrate that in the
Italian constitutional context it would be arbitrary to limit principles exclusively to individual rights. Social justice and the social rights that derive from
it are meant to be woven into the principle that provides backing for legislative
rules. The “unity of the law” emerges in this more complex constitutional terrain, and the tasks of the legislator and of the courts emerge enriched from it.
But the difficulties also increase.
8. Consequences and difficulties
8.1. The discretionary power of the legislator
Law based on principles, and all the more so when arguments of policy are
incorporated into such principles, highlights the difficult problem of the relationship between judicial evaluation and legislative discretion. This problem,
underestimated or ignored by positivists, has long been discussed and made
more acute in the past few decades as constitutional courts became empowered to review legislation. This new power pits legitimation of the courts against
the democratic legitimation of the legislator: jurisprudence vs. the principle of
majority.
42
ITALY COST. art. 3.
43
See id.
44
See id. arts. 41, 42, 44.
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Even if it has never formulated an explicit doctrine in this regard, the Italian
Constitutional Court is not inclined to bind legislators positively to the dictates
of a concrete system of principles or constitutional values. Similarly, the Court
has not opted for an exclusively judicial administration of the Constitution,
which would downgrade the law to a simple realization of constitutional dicta,
consequently promoting an overgrown expansion of the law at the expense of
politics and of democracy. Instead, the Constitutional Court keeps to an “external control” of the law, taking into consideration the constitutional principles
implicated in a given case involving legislation and determining whether the
legislator has properly taken them into account in a way that is “not manifestly unreasonable” (to use an expression that by now has become consecrated). In this way, the Court “administers” the constitutional principles that
cannot be ignored by the legislator but does not set the rule that has to be
drawn from them.
An example can perhaps help to clarify this jurisprudential attitude. A provision of the 1930 criminal code made it a serious crime for women to have an
abortion. A woman could only avoid conviction if she could prove the existence of “a state of necessity.”45 The constitutional issue was to determine
whether this rule was justifiable in relation to the constitutional principles
involved. The Constitutional Court (in a 1975 decision) held that such principles (or constitutional “goals”) are, on the one hand, the physical and mental
health of the woman, which can be compromised by the pregnancy, in circumstances to be determined; and, on the other, the preservation of the fetus,
with the proviso that the rights of women concern a person who is already a
human being, while the fetus is not.46 The Court held that the criminal code
neglected the health of women in a manifestly unreasonable way and that it
was, therefore, too tilted toward the other principle at play. The “state of necessity” was restricted to a very limited number of cases of serious and absolutely
inevitable harm (in essence, only when the life of the woman was in danger).
On these grounds, the Court invalidated the criminal law at issue, inviting the
legislator to draw a new, reasonable balance “in order that the necessary precautions are taken to prevent procuring abortion without serious investigation
regarding the likelihood and the seriousness of the harm or danger which continuation of the pregnancy could impose on the mother.”47 Consistent with
this, the lawfulness of an abortion must be tied to a prior evaluation of the
conditions that justify it. Following the Court’s decision, the legislator drafted
a law that defined the criteria of danger for the mental and physical health of
women; the period within which by law abortion may be carried out; medical
checkups, times, and procedures at centers of social assistance to help women
45
C.P. (1930) art. 54.
46
See Carmosina v. Pres. Cons. Ministri, Corte cost., cass., 18 Feb. 1975, n.27, 20 Giur. Cost. 117.
47
Id. at 117.
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to arrive at a decision for the purpose of authorizing the abortion. The legislator
has therefore adapted the principles stressed by the Court. The law that resulted
from this is certainly not the only possible one, and, in fact, from that time on, in
Italy as elsewhere, there is much discussion and numerous proposals concerning the proper level of government control over a woman’s decisions.
Judicial decisions of this kind—normally referred to as “decisions of
principle”—do not eliminate the legislative problem but rather recast it, setting
limits on acceptable solutions. In some cases, when it is a question of safeguarding “rights that have a price,” the “minimum content” of the relevant
principles must be taken into consideration, thus limiting the discretionary
power of the legislator concerning expenses and budget. For example, in a
1988 decision, the Italian Constitutional Court compared the involuntarily
unemployed person’s right to social assistance to the legislator’s autonomy
over the budget and declared that a law that provided for an unemployment
benefit of a few thousand lire per month was unconstitutional.48 The Court
deemed that such an amount was below a minimum acceptable under law but
left further future decisions to the legislator. A series of decisions in the 1990s
has balanced the individual right to health care with the general interest in
mandatory health care for the masses in the case of public vaccination campaigns.49 It is well known that damage to the health of the individual can, in
certain exceptional circumstances, result from certain vaccinations. The Court
saw fit to decide that the legislator can impose the vaccination for the benefit
of the community at large, but also that an individual who is harmed thereby
has a right to compensation, payable by the community.50 In this way, society
must show support to the individual who, unable to avoid the vaccine, has
contributed to the fight against an epidemic in the interest of all. The amount
and conditions of compensation are left to the discretion of parliament, provided it satisfies a constitutionally acceptable minimum to be established by
the legislator subject to subsequent supervision by the Constitutional Court.
This last example indicates how balancing is not only limited to deploying
techniques geared to smooth conflicts among principles, as in the case of abortion, but also encompasses administering financial measures in order to calibrate harms and benefits. All the same, in the latter cases, the Constitutional
48
See Marconi, INPS v. Pres. Cons. Ministri, Corte cost., cass., 26 Jan. 1988, n.497, 33 Giur. Cost.
2209.
49
See Oprandi v. Ministero della sanità, Corte cost., cass., 14 June 1990, n.307, 35
Giur. Cost. 1874; Procuratore della Repubblica per i Minorenni di Trento v. Pres. Cons. Ministri,
Corte cost., cass., 16 Mar. 1992, n.132, 37 Giur. Cost. 1108; Zampierin v. Pres. Cons. Ministri,
Corte cost., cass., 20 June 1994, n.258, 39 Giur. Cost. 2097; Brodini v. Ministero della
sanità, Corte cost., cass., 15 Apr. 1996, n.118, 41 Giur. Cost. 1006; Tavarini v. Ministero della
sanità, Corte cost., cass., 23 Feb. 1998, n.27, 43 Giur. Cost. 148; Pres. Cons. Ministri, Corte cost.,
cass., 9 Oct. 2000, n.423, 45 Giur. Cost. 3166.
50
See Brodini, n.118, 1996; Tavarini, n.27, 1998; Pres. Cons. Ministri, n.423, 2000.
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Court can only provide for funding through the state budget and cannot go
beyond the request that such funding should not be ridiculously low or symbolic, mindful that the criteria of suitability also depend on compatibility with
the budget, of which the legislator is the arbitrator.
8.2. The separation of powers
Through control of legislation limited to ensuring respect for negative limits,
though not extended to a demand for positive conformity with constitutional
principles, the Italian Constitutional Court believes that it guarantees an
equilibrium between constitutional review and legislative discretion. This,
however, though helpful, does not provide a solution to the problems that arise
when the separation of powers is invoked by the legislator. Every reduction of
the latter’s power, although negative from the point of view of discretionary
power, delineates a positive direction. By multiplying the prohibitions, one can
impose a rule. Moreover, the separation of powers becomes increasingly problematic insofar as the determination of principles and their combination are
not revealed as facts but involve elaborations not reducible to mechanistic
deductions.
The concept of the separation of powers as conceived by legislative
positivism is reductive and misleading when applied to the relationship
between the Court that determines the constitutional legitimacy of laws and
the legislator. According to the simplest idea, the separation of powers, on the
one hand, protects the judge from the temptation and threats of political
power that may estrange him or her from the faithful interpretation of the law;
on the other hand, it protects the legislator from the temptation to abdicate to
a superior law created by the judge in concrete cases.
This scheme, even if otherwise plausible, is highly problematic in the context
of the constitution. Although faced with a constitutional jurisprudence
constantly in flux, constitutional legislation is an exceptional and sporadic
eventuality. The intervention of the constitutional legislator to question a
constitutional line of jurisprudence is an eventuality that is theoretically
sound and provided for but that remains in practice somewhat anomalous.
Accordingly, unlike ordinary jurisprudence, constitutional jurisprudence must
often operate in the absence of any significant counterpower.
This lack of balance has led to fanciful notions, culminating in the famous
dictum of Justice Oliver Wendell Holmes: “The constitution is what we say it
is.”51 These notions imply the omnipotence of constitutional courts and
equate constitutional interpretation with constitutional legislation. These are
exaggerations, at least as far as the Italian Constitutional Court is concerned.
What in the abstract seems an almost total absence of limits is paradoxically
translated into the Court’s perception of its own frailty. Weakness in practice
corresponds to strength in theory. What is missing is the counterforce one can
51
O. W. Holmes, The Path of the Law, 10 HARV. L. REV. 457 (1897).
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rely on, compare oneself with, and even fight against. If you know that you can
be corrected, you act with greater confidence. Your mistake is not catastrophic
but can be rectified before you are again called upon to issue a judgment.
Unlike ordinary courts, which can be strengthened by interaction with the
legislator, constitutional courts are weakened inasmuch as their decisions cannot be challenged at the level of law. Because of this, constitutional courts are
exposed to a continuous, corrosive policy of criticism that undermines their
authority by accusing them of arbitrary misuse of power. Moreover, these risks
are greater when the jurisprudence at stake is one of “principle” submitted to
the intense reconstructive work of the judge. In such a case, the judge bears a
special responsibility to promote scientia iuris and to unveil the complex relations that exist between this and the iuris prudentia. Only thus can constitutional courts compensate for their deficit of legitimacy, which derives from a
lack of limits and from their apparent omnipotence. The position of the Italian
Constitutional Court in relation to constitutional doctrine is thus not an enviable one, at the present time, and that explains its reluctance openly to use
arguments of principle.
8.3. Case law?
In relation to rules, the legally relevant elements in a case are established in a
more or less determined way. In contrast, principles, as already suggested, yield
no such determined path, with the result that the relevant elements of the law
are determined on a case-by-case basis. This characteristic renders principlebased jurisprudence particularly plastic and adaptable, whereas jurisprudence
by rules aims at a greater rigidity and fixity. This leads to the possibility that
principle-based jurisprudence (in spite of its tendency toward general visions)
is susceptible to being reduced to casuistic jurisprudence. This compromises
the very idea of law as a system and threatens the equality (the treatment as
equals) of citizens, thus undermining the predictability and certainty of laws.
Furthermore, these risks are multiplied when dealing with clashing principles
rather than with a single straightforward principle.
On the other hand, it is necessary to remember that, in the light of the
complexity of present-day law and of its governing principles, flexibility and
adaptability are not defects requiring correction, but requirements actually
imposed by a constitution. There are circumstances where legal norms, of
necessity, must be closely tailored to the nature of the case, to the personalities
and to the concrete subjective situations that are implied in it, etc., in order
to allow the principles to remain valid without unreasonable sacrifices. In
this regard the rules with their rigid, general automatism are in themselves
unconstitutional and, where possible, must be recast as principles.52
52
On this subject, see Tania Groppi, ¿Hacia una Justicia Constitucional “Ductil”? Tendencias Recientes
de las Relaciones entre Corte Constitucional y Jueces Comunes en la Experiencia Italiana, in DERECHO
PROCESAL CONSTITUCIONAL 239–58 (Eduardo Ferrer Mac-Gregor ed., Porrúa 2002).
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The jurisprudence of the 1990s offers numerous examples of conversion of
the law from rule to principle. One of these, which is particularly representative, is a 1996 decision that examined the constitutional legitimacy of a regulation of family law that forbade adoption, in the name of imitatio naturae, in
cases where the child involved was more than forty years younger than the
adults seeking to adopt him or her.53 In the actual case, a little boy was happily
living with a family, following an order for foster care (a temporary measure
that usually precludes adoption). To remove him from the family seemed forced
and unfair. The regulation at issue was therefore declared unconstitutional,
and the court established that a judge can order adoption “in the exclusive
interest of the minor, even when one of the two adoptive parents is more than
40 years older than the child to be adopted, in a case in which serious harm to
the child could result from not being adopted, in a situation which could not
be otherwise avoided.”54 This result corresponds in concrete terms to the
hypothesis formulated by Dworkin to the effect that a rule can be transformed
into a principle simply by adding terms such as “reasonably,” “by norm,” “as
far as it is legal to wait,” “good faith,” “negligent,” “unjust,” “irrelevant or
insignificant,” etc. The permitted difference in age for adoption continues to be
less than forty years, but only “so long as it does not defeat other key principles,” such as the principle of protection of “the interest of the minor,” an
unwritten principle incorporated into the positive law.55 There are numerous
other examples dealing with subjects such as the determination of sanctions,
which require flexibility and gradual evaluation on a case-by-case basis; the
determination of prison sentences, with special regard to the particular conditions of minors or of people suffering from HIV; laws regarding minors, where
all the principles of public interest must be in agreement with that of the protection of people in fieri; and property law, when the principle of protection of
the weaker party is at stake, as in the case of renting property to the elderly, the
sick, or those with very limited resources.
This confirms that there are areas where the claims of legal rationalism and
of the abstract and universal norms derived from it cannot be realized without
provoking an assault on the multiple and diverse characteristics of the case to
be decided—that is, without contradicting the requirement typical of the law
of our times: to mark valid differences properly by treating what is equal
equally while differentiating what is unequal.
Within certain limits, then, the casuistic nature of law is not a vice but a
virtue. A multiplication of legal rules to arrive at the number necessary to
account for all the possible variants relevant to concrete cases would be
53
See Crescenzo v. Pres. Cons. Ministri, Corte cost., cass., 18 July 1996, n.303, 41 Giur. Cost.
2503.
54
Id. at 2509.
55
Id.
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unthinkable, and, indeed, not possible without the gravest of consequences.
For this reason, principles satisfy the need. However, to avoid completely
undermining the law, not through infinite rules but through infinite different
decisions, one can understand the important role of precedents—even in a
civil law country like Italy—which grows in direct proportion to the use of
principles by courts.
The doctrine of stare decisis, however, does not provide a conclusive answer.
Through precedents, principles can be transformed into rules, and deference to
them may lead again to the pitfalls of positivism. For distinctions not to be misused, one must turn to new principles of evaluation that allow for the living
growth of the relevant jurisprudence. The decisive factor for avoiding falling
into a destructive transformation is recourse to judicial-cultural conditions
that inhibit judges from using arbitrary power in concrete cases. Indeed, how
better to account for the culture of a people than wisely to select criteria of
what is considered relevant and irrelevant in collective life? The guarantor of
these criteria is legal science, which is responsible, yet again, for producing
propitious conditions for the efficient working of law based on principles.
9. Why defend an indefensible theory?
In its different more or less “critical” variants, legal positivism is by far the most
widespread theory in Italy. Why does this happen when it should be obvious
that what takes place in the courts, in all the most important nonroutine cases,
is far from mere administration of legislative rules but, instead, entails the discovery of contested rights and wrongs that must be settled in the name of the
law? Why, then, insist on a fiction?
It is not necessary to adhere to the realist principles of an Alf Ross to share
his desire to understand the social and psychological reasons that make one
want to hide what actually happens.56 Ross himself, after all, was satisfied with
a state of affairs where the administration of justice as a mere logical deduction from legal norms, without the intervention of judicial evaluations, seems
to be a universal phenomenon perhaps because most likely it has consequences that are socially useful.
One can certainly have doubts concerning these last observations. This is
not only because each camouflaging of reality sooner or later produces negative consequences, if for no other reason because it prevents seeing problems
in their proper light. One can suppose that by “socially useful” consequences
one means that the alleged mechanical nature of the application of the law
represents the best defense of the autonomy of the judicial function, of the
independence of judges from politics, and of the latter’s prestige in the eyes
of citizens. In other times, in a different legal system, and in a different social
56
See ALF ROSS, ON LAW AND JUSTICE (Univ. of California Press 1958).
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context, this might have been the case. Today, however, the effect is to make the
honest contradictions of jurisprudence indistinguishable, in the eyes of the
public, from errors or irresponsible actions; from partiality, bias, or corruption;
or, to put it in the terms of “critical” positivism, from pure and mere discretion.
Unfortunately, this obscures the fact that contradictions are often the result of
honest efforts to search for solutions that better approximate what is right by
moving beyond the lacunae found in the law.
One can see why it is too easy to foment a campaign against judges and their
independence, as is now the case in Italy and other European countries. By
insisting on falsely portraying their function, one deprives the judges of the
strongest argument at their disposal: the true essence of judging according to
law. This is, perhaps, done to avoid confronting a new, practically unexplored
round of questions revolving around the bureaucratic nature of the judicial
enterprise, inherited from the time when positivism prevailed but which is
hardly compatible with law based on principles. Silence on this issue is understandable, as a matter of corporate solid authority, but presumably it cannot
prevent the judges from remaining bureaucrats at the cost of losing their
independence.