Non-Normative Principles

29 Pages Posted: 15 Oct 2019 Last revised: 15 Jan 2020

See all articles by Jeremy Waldron

Jeremy Waldron

New York University School of Law

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Date Written: May 24, 2019

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

Suggested Citation

Waldron, Jeremy, Non-Normative Principles (May 24, 2019). NYU School of Law, Public Law Research Paper No. 19-50. Available at SSRN: https://ssrn.com/abstract=3463964 or http://dx.doi.org/10.2139/ssrn.3463964

Jeremy Waldron (Contact Author)

New York University School of Law ( email )

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