Professor of Comparative Jurisprudence, University of Tartu
Principles of Law and Legal Dogmatics as Methods Used by Constitutional Courts
I was inspired by several things in writing this article, at least two of which were a lucky coincidence. The first has to do with the 15th anniversary of the Constitution of the Republic of Estonia, and the second with several research papers on important problems concerning the working of constitutional courts and constitutional law which I came upon when studying literature on constitutional law and constitutional review for the above anniversary. But there is also a third factor, an international colloquium "The Future of the European Judicial System - The Constitutional Role of European Courts" 1 held in Berlin in 2005, where among many other questions the issue of constitutional courts in states with revolutionary changes in entire socio-political system was raised.
This issue undoubtedly holds significance because of where the Constitutional Review Chamber of the Constitutional Court of the Republic of Estonia is positioned in the legal system and due to the content of its work, especially some basic principles of the Chamber, two of which I have chosen for deliberation in this article. Those two are principles of law and legal dogmatics, which are significant methods (means) of formation of opinions, argumentation and of course also vocalising how the legal reality (in its broad sense) corresponds to the word and meaning of the constitution. The function of constitutional courts is not merely the traditional administration of justice. Work of constitutional courts has many contact points with legal policy. It is constitutional courts that are most influenced by legal policy, and yet it is constitutional courts who to some extent make legal policy. The author is of the opinion that principles of law and legal dogmatics are instruments that "work" for the benefit of implementation as well as formation of legal policy. Legal policy should be interpreted as shaping of social and political life by means of legislative provisions drafted and established by public authority2. Such a definition also includes implementation of justice. Also a jurist can be active in the formation of legal policy. He or she has two tasks: a reasonable reconstruction of the problem that needs regulation, and thereafter a quest for a better solution. If he or she also works with constitutional law, then he or she needs to understand political processes for better lawmaking.
Concerning dogmatics - when jurists talk about dogmatics much remains unclear, even the definition. Moreover, mentioning dogmatics sometimes even evokes negative emotions. The reason for this is that in many cases dogmatics - regardless of the area of application - is understood as something unchangeable, even petrified. Below I will deliberate over whether law and also jurisprudence should say farewell to dogmatics, and explain what dogmatics exactly stands for. Those issues need to be reviewed not only in the context of national legal orders but also in the European context. The question of boundaries of constitutional law was clearly raised at the above Berlin conference, where discussion was heated and a demand for the development of contemporary European constitutional law theory was voiced3.
Law is in fact a special instrument of power for the realisation of political will. In that way each legal provision embodies a piece of normatively secured policy. It is nevertheless a fact that courts do not base their judgments only on legislative provisions. For courts the regulatory basis for decisions is much wider. As I said, this article views principles of law and legal dogmatics as legal guidance for making relevant decisions, especially in constitutional courts, which have the most direct and open contact with law and legal policy.
Indeed, what are principles of law? One of the shortest definitions could be "very important general rules". Yet, not everybody understands why that is the case. One explanation is that principles of law have to do with values4. Another opinion is that the importance of principles stems from their bond to the idea of law 5 , the most important component of which is justice. A reference is also made to the link between principles and the highest law6. The significance of principles is also associated with their sense of legal order as such7. The importance of principles is sometimes underlined in the context of the so-called metanormative function8. The study of principles has basically emerged in the context of globalisation9.
Contemporary literature in the field that has most contributed to the theory orientated discussion on principles in German language is "Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts" 10 by J. Esser published in 1956, and "Taking Rights Seriously" 11 by R. Dworkin published in 1977 regarding common law. The above authors agree on certain things, but have significant differences in others12. Both works underline that principles refer to the logical structure that derives from provisions, and not only in the sense of different gradation, but also definite differentiation. What are the differences in Esser's and Dworkin's positions on principles of law?
For Esser a principle always means a so-called larger leeway for the judge than offered by a provision in a legal source. The size of such a leeway depends on the fact that a judge must somehow form that principle. Dworkin is on an entirely contrary opinion that a principle narrows a judge's decision-making space. For Esser a principle is needed to justify a judgment in the legal space, but for Dworkin it is a reference to something important. For Esser principles are separate from ethics. Dworkin on the other hand considers principles to be ethical, and the existence of principles disproves the positivist understanding of separation of right and moral; whereas according to Esser principle of law applies only when used in judgments. For Dworkin principles of law apply because they are just (provided that they are coherent with the legal order)13.
The well-known legal theorist Robert Alexy finds, based on Dworkin and being familiar with Esser's dogmatics, that principles are distinct optimisation orders, which need to be complied with at different levels. Whereas provisions are rules that either must be followed or need not be followed which makes them definitive14. Thus, implementation or formation of principles has nothing to do with deductive subsumation process. Another difference between principles and provisions is the fact that in case of conflicting provisions collision rules apply, whereas a conflict of principles is solved by "considering the circumstances of the case the preferential regulation is determined between both possible practicable principles"15. Here preferential means that what follows is the required legal consequence deriving from the principle. The third difference between principles and provisions, according to Alexy, is that the higher the level of non-compliance, the bigger must be the importance of complying with the second principle16.
How to recognise principles and find them? An argument can be made for the importance of principles and what differentiates them from provisions, but without recognising them, the above is practically useless.
In civil law the most natural and also logical place is to look for principles is the objective law itself. Text of a law may expressis verbis denote a certain part of a text as a principle, but a principle may be formally defined without being expressly named as a principle17. Another possibility to find principles is to analyse current law (laws, regulations and administrative provisions). Principles are established the same way both in civil law and common law legal cultures18. The underlying idea is that principles of law cannot be and are not something completely separate from objective law itself. Figuratively speaking, principles of law are similar to abstract provisions, but at a more general level. Nevertheless, two branches can be distinguished: the first is orientated to finding a traditional provision-based generalisation, and the other additionally includes study of the relevant political-moral context19. Principles of law are formed also in jurisprudence. What is especially important in this context is that court practices, especially that of constitutional courts, can significantly contribute to principle of law20. In rule of law the role that courts play in formation of principles is very natural and even necessary. It is courts in rule of law who are the last instance of judgment. Therefore one can even speak about the triumph of judge-made law21. In Germany , for example, first cases were filed already at the dawn of the 20th century. Legal theorist B. Rüthers even argues that the most important part of today's law is no longer statutory law, but the judge-made law of the last instance22. Similar situation can be confirmed in all parts of today's legal orders, but is especially recognisable where objective law has high level of abstraction (e.g., constitutional law) or where regulations have gaps23.
I would like to elaborate on the functions of principles now. To explain their purpose - why they are needed at all. Generally speaking, the function of principles may be reduced to the function of a legal provision24. We can thus speak about the regulative function of principles. Direct regulative influence cannot be excluded 25 , but in most cases the scheme operates through and by certain complete legislative provisions. This leads to but one logical conclusion: application of principles allows arranging the reality relevant to the law in accordance with the governing political will...