The Syntax of Principles: Genericity as a Logical Distinction between Rules and Principles

• Date: 01 December 2017
• Author: Pedro Moniz Lopes
• Published date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12183

The Syntax of Principles:

Genericity as a Logical Distinction

between Rules and Principles

PEDRO MONIZ LOPES

Abstract. Much has been said about the logical difference between rules and princi-

ples, yet few authorshave focused on the distinct logical connectives linking the nor-

mative conditions of both norms. I intend to demonstrate that principles, unlike

rules, are norms whose antecedents are linguistically formulated in a generic fash-

ion, and thus logically described as inclusive disjunctions. This core feature incorpo-

rates the relevance criteria of normative antecedents into the world of principles and

also explains theiraptitude to conflict with opposing norms, namely that their conse-

quents are fulfilledto varying extents more frequently than those of rules. I conclude

that the property of genericity should be predicated to the norm antecedent of princi-

ples, more precisely to the hypothetical action. This is of paramount importance to

explain, in terms of logical implication and exclusion, the expansibility of competing

principles, in contrast with the exclusive characterof conflicting rules.

1. Introduction

Rules and principles are categories of norms included in the conceptual apparatus

of most contemporary legal theorists. The dichotomy (Esser 1956, 39ff.) was made

famous in Dworkin’s attack on Hart’s positivism, notably the separability thesis

(Dworkin 1978, 22ff.). For the purposes of this paper, I simply stress that Dworkin

adopted a logical distinction (ibid., 24) that mainly focused on predicating principles

with a dimension of weight and defining rules as definitive commands that apply

“come what may.” Now, some inconsistencies can be detected in Dworkin’s

account, notably the illustration of rules qua all-or-nothing prescriptions through

Riggs v. Palmer (in which a rule-defeating principle prevails).

1

Dworkin’s merits,

however, transcend the clash between followers of positivism and natural law

from which the rule-principle distinction stemmed. Unfortunately, Dworkin never

thoroughly demonstrated why the distinction was logical.

1

The rule the heir to a validwill shall inherit, though internally applicable (Navarro and Moreso

1996, 125–8; Pino 2011a,797ff.), was defeated by the principle thatno one may profit from his own

wrong. The latter assertion,however, is yet to be confirmed as it presupposes criteriafor distin-

guishing principlesand rules, addressed below.

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C2017 The Authors. Ratio Juris V

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Ratio Juris. Vol. 30 No. 4 December 2017 (471–490)

2. Criteria for a Distinction

It is important to consider three main theses when addressing rules and princi-

ples.

2

First, the thesis that there are no solid grounds for making a distinction

between the two (Bro_

zek 2012, 224; Maranh~

ao 2012, 79, 120ff.). Second, the weak dis-

tinction thesis putting forward differences of degree (Pino, 2011b, 89; Raz 1972,

834ff.). Lastly, the strong distinction thesis sustaining qualitative differences (Alexy

2000, 295ff.; Sieckmann 2011a, 28ff.; Borowski 2011, 95ff.). The weak and strong dis-

tinctions can further be characterized in terms of: semantic criteria relating to the

meaning of the words of the norm-sentence; syntactic criteria linked with the ele-

ments comprised in the norm-structure and its logical relations, and pragmatic cri-

teria concerned with the use of both rules and principles in the legal discourse.

Based on semantic criteria, principles are norms that are vague or open-textured to

a high degree, usually connected with value-concepts (Pino 2011b, 97ff.). Vagueness

and open-texture are types of linguistic ambiguities of words included in a norm-

sentence. A word is vague when the boundaries of its denotation (i.e., its semantic

range) are quantitatively or qualitatively uncertain, e.g., “close,” “beautiful” (Endicott

2006, 72ff.). A word is open-textured when it shows potential for vagueness (Schauer

2011, 4). The semantic criteria support the view that, unlike rules, norms formulated

under linguistically ambiguous sentences should be deemed to be principles.

According to syntactic criteria, principles show a logical structure different to

that of rules. Assuming that implicit principles can be formulated through general-

ization (Alchourr

on and Bulygin 2006, 130ff.; Guastini 1999, 155ff.; Ratti 2013,

173)—i.e., a generalization of the antecedents and inductions of the consequents of

rules under similar deontic modality—it matters not whether a principle was

enacted in a statute or logically construed from rules and subject to customary

validity. As irrelevant as the formulation of the norm-sentence is for its logical

structure, both implicit and explicit principles display the same structure, some-

how different to that of rules.

Lastly, pragmatic criteria stem from two uses of the conceptual distinction in

legal discourse. In the first, principles are used as defeasible norms and prima facie

reasons which, unlike rules (i.e., exclusionary reasons), are subject to a general con-

dition of balancing with conflicting norms. Principles prescribe an effect liable to

be circumstantially defeated under factual conditions that instantiate prevailing

conflicting norms under balances. The second use of the distinction relates to the

role of rules and principles in practical reasoning: Principles are first-order reasons

that justify the consequent of rules (Raz 1999, 187).

3. Critical Analysis of the Criteria

I assume semantic criteria to be plainly wrong (Aarnio 1997, 180; Guastini 2008,

119ff.). There is no direct relation between the breadth of the semantic range of a

2

Dworkin (1978, 22ff.) also points out the distinction between principles and policies (admit-

tedly blurry). The analysis of this distinction transcends the scope of this paper. In any case, I

believe all legalnorms, rules, and principles alike,can be formalized under wenn/dann schemata.

Means!end norms (principles or policies)are norms the antecedents of whichdescribe any hypo-

thetical actionsand states of affairs in which the end can factuallybe pursued (the pursuance being

subject to anobligation, permission, or prohibition).

472 Pedro Moniz Lopes

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C2017 The Authors. Ratio Juris V

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