Non-Normative Principles

Abstract

How should we think about legal principles? In analytic jurisprudence, the best-known account of legal principles — Ronald Dworkin’s account — assigns them a normative function in law, albeit not a hard or determinate one. But legal principles sometimes serve a characterizing rather than a normative function: they tell us about the character of a legal system rather than giving us instructions about how to deal with difficult cases. There is a further question whether characterizing principles can nevertheless perform some sort of normative function in legal argument. In the second half of this paper, I consider the operation of constitutional principles, like the rule of law and the separation of powers.

Keywords: constitutional norms, Critical Legal Studies, Dicey, Dworkin, Fuller, general directive propositions, Montesquieu, principles, Raz, Roman Law, rule of law, separation of powers, rules