This book intends to help understand and apply principles and rules better. Its target is to keep the distinction between principles and rules whereas structuring it on different foundations than those jurisprudence ordinarily employs. The first object of investigation is the phenomenon of interpretation in Law in order to understand that the classification of certain normative species as either principles or rules depends in the first place on axiological connections that are not ready prior to the interpretation process that unveils them. Then, a definition of principles is proposed, aiming to understand what their unique characteristics are when compared to other norms of the legal order. Thirdly, the conditions for the application of principles and rules are examined, which are the normative applicative postulates. It will be shown, on one hand, that principles not only explicit values, but also set forth precise species of behaviors, though indirectly; on the other hand, the creation of conducts by rules is also to be weighed, even though the behavior set forth in advance may be overcome, depending on the accomplishment of a few requirements. That will surpass both the mere praise of values, which does not create behaviors, and the automatic application of rules. A model is proposed to explain the normative species, which includes structured weighing on the application process while encompassing substantive criteria of justice in its argument, through the analytical reconstruction of the concrete use of normative postulates, especially those of reasonableness and proportionality. All of that is done with a focus on the ability of intersubjective control of the argumentation, which often degenerates into capricious decisionism.
1. First Considerations. 2. Norms: Principles and rules. 2.1 First distinctions. 2.2 An overview of the evolution of the distinction between principles and rules. 2.3 Principles and rules distinction criteria. 2.4 Proposal to distinguish principles and rules. 3. Metanorms: Normative Postulates. 3.1 Definition of normative applicative postulate. 3.2 Guidelines to analyze normative applicative postulates. 3.3 Species of postulates.4. Conclusions. 5. References.
Foreword to the German Edition (Theorie der Rechtsprinzipien)
In the past few decades, the most important forward thrust in the fields of Legal Theory and Philosophy has come mainly from the Anglo-American legal universe. That is especially true of the theme of general principles of Law, in which, following the works of Ronald Dworkin, the distinction between rules and principles made its way into the German-speaking legal universe, having found many followers despite some variations and developments in some aspects. The fact that this theme is intensely debated in the Ibero-American legal universe as well has not yet been presented enough in our country.
We are lucky, therefore, that Humberto Bergmann Ávila, with his profound knowledge of the German Legal Science and excellent command of the German language, has presented his "Theory of Legal Principles" also as a dissertation in German. Born in 1970, the author is a Professor of Tax, Finance, Economic and Constitutional Law at the Federal University at Rio Grande do Sul and a lawyer in Porto Alegre, Brazil. He is connected to the German Legal Science above all for his 2002 Doctor degree obtained with his dissertation on "Substantive Constitutional Limitations to the Power to Tax in the Brazilian Constitution and German Fundamental Law," which was presented to the Ludwig-Maximilians-Universität in Munich and published in Baden-Baden in 2002.
Despite his openness to the positions developed heretofore and his willingness to incorporate and preserve fruitful viewpoints of other writers, the author imprints this current work with a clearly independent profile and original conception. An initial thesis of pivotal importance states that the opposition of rule and principle, both understood to the same extent as norms, cannot be seen as an exclusive contradiction. Rather, a legal norm can operate both as a rule and as a principle. Furthermore, the author does not acknowledge the specificity of principles in the fact that they can and ought to be balanced and have a dimension of weight; rather, he proves that this is fundamentally true of rules as well. Consequently he looks for the distinction between rules and principles somewhere else, and finds it firstly in the fact that rules have a direct description of a behavior or a jurisdiction assignment as its object, aiming only indirectly to the realization of a goal, whereas principles directly aim to the realization of a goal and only indirectly influence the behavior or jurisdiction assignments required to achieve such goals. Against that backdrop, the author furthers additional criteria and develops a different proposal of his own to distinguish between rules and principles.
Next, he expands his concept with an additional plane, adding postulates to the rules and principles. In doing so, he has in mind criteria such as proportionality, reasonableness, and legal efficiency and safety, which are usually called principles, quite often without much thought. The author faces such use of language and such way of thinking by arguing that postulates, differently from principles in a more strict sense, do not aim to the direct realization of a goal; on the contrary, they perform the distinct function of prescribing and guiding some thought and argumentation processes, thus structuring the way rules and principles are applied. Hence, postulates are not located on the plane of rules and principles, but on a metaplane, which is the reason the author calls them second degree norms or application norms.
Notwithstanding the high level of abstraction and the density of the language and argumentation in a large part of the work, the presentation is enriched very elegantly with practical examples, taken from the Brazilian and German Law and found mostly in Constitutional and Tax Law, in accordance with the focus of the author's scientific work in substantive Law. Such fact also outlines the connection of his interest in
First Considerations.- Norms: Principles and Rules.- Metanorms: Normative Postulates.- Conclusions.
Examines the distinction between principles and rules so that they can be better understood and applied. This book structures the distinction between principles and rules on different foundations than those jurisprudence ordinarily employs.
Connects the Anglo-Saxon, the German, and the Spanish/Brazilian discussion in one of the most central issues in legal theory and legal philosophy
Gives a central role to metanorms in legal reasoning with a profound analysis of concepts such as balancing, practical coherence, reasonableness and proportionality
Does not confine its analyses to a thorough review of the distinction between rules and principles
Makes an articulated contribution to the discussion proposing a new model to explain the normative species, which includes structured weighing on the application process while encompassing substantive criteria of justice in its argument
Contributes to the discussion in as straightforward a way as possible, including examples in the course of the arguments