The “Doctrine of Principles” in Neo-Constitutional Theories and the Principle of Reasonableness in Action

Abstract

The application of legal principles in legal argument is a fundamental claim of the neo-constitutionalist legal theory. Principles are at the top of the legal hierarchy and provide for the material unity of the judicial system, which is a pluralistic one and intertwined with various needs. Consequently, principles are to be regarded as prior and antecedent to rules, from a pre-political, fundamental point of view aiming at the judicialization of power. Considering the expansive nature of principles, in particular constitutional principles and principles proclaimed by supranational Charters of rights, it is no longer sufficient to respect the law’s prescriptions about who and how: gradually, and mostly thanks to the control of constitutional legitimacy, an unavoidable question is arising about the what of law, the an of legal rulings as well as its compatibility with the standards of justice. Dworkin, in particular, affirms that principles are first of all “a requirement of justice or fairness or some other dimension of morality”; they rightly step into the world of law thanks to the adequacy and to the justification power they show. The first part of the present chapter will analyze the definitive recognition of the normative character of principles; in particular the difference of their structure and functioning from rules, and finally the different and similar aspects between principles and values. The second part of the chapter will observe more closely the functioning of principle of reasonableness, through the analysis of some passages of important judgments.