The Nature and Classification of Legal Principles

Nature, Concepts, and Classes of Legal Principles

We bring together doctrinal positions in two major sections: the claim that principles are rules and the negation of that claim.

Principles as Normative Standards

General principles indicate behaviors that are considered valuable and, therefore, must be performed. Accordingly, it is affirmed that they constitute a kind of rule, since they always guide action by prescribing or prohibiting something. Generally speaking, rules can be defined as the set of principles and regulations that govern community life; they are one of the instruments of social control that upholds the organization of society.

The doctrine lists several traits that characterize principles and distinguish them from other rules:

1. Fundamental: Principles explain why certain behaviors should be adopted or avoided.
2. General: They prescribe behavior in a blanket manner.
3. Not Final: Principles are not conclusive and can be fulfilled to varying degrees.
4. Open: They are open standards without a specific factual determination, meaning it is not always clear when they should be applied.
5. Non-Determinative: Principles do not necessarily determine a decision but only provide reasons for the options presented as alternatives.
6. Weighted: Principles have a dimension of weight. When two principles conflict, one is given more weight without invalidating the other.

Principles as Non-Normative Concepts

Prieto Sanchis disagrees with the characterization of principles as rules that are simply more fundamental, general, or vague. He argues that such features are gradual and do not allow for a strict differentiation from other standards.

According to Larenz, legal principles are the guiding thoughts of a specific legal regulation, whether existing or potential. They are not yet implemented rules but can be transformed into them at any time. The principle is the basis of the mandate; the rule is the command itself—it is the realization of the principle.

Classifications of Legal Principles

While principles have been discussed as a unitary block, several different types can be distinguished.

• First, according to Dworkin, is the distinction between a principle and a policy guideline. A principle is a requirement of justice, whereas a guideline proposes a goal to be achieved by responsible members of society.
• A second classification, from professors Atienza and Ruiz Manero, distinguishes between principles of the primary system (concerning the subject) and principles of the secondary system (concerning legal institutions).
• The third distinction, also noted by these professors, classifies principles as either explicit or implicit.