What are Principles and How Do They Work?
Unwritten constitutional principles pose a number of interesting puzzles, some of which are unique to their unwritten status, some of which are shared with all principles, unwritten and written, legal and non-legal. In what follows, we examine what principles are before going on to consider how they work. Our comments are intended to be of general, cross-jurisdictional relevance, though we rely on Canadian examples by way of illustration.
What are principles, and how do they differ from rules, values and norms?
Principles are often compared to rules. Occasionally they are treated as synonymous with norms and values. Is it possible to offer any clarification regarding nomenclature?
Beginning with the first comparison, we may tend to think of rules as being more precise than principles. Rules, it has been said, are open and shut, all or nothing (Dworkin, 24): when the relevant facts present themselves, the rule applies in a straightforward way. Principles are said to be more abstract, lying behind rules and giving them unity, perhaps, but without themselves pointing to a precise application or solution. If only things were as (relatively) simple as this.
Without too much effort, most jurists can probably think of a principle that is fairly precise, and a rule that is notoriously abstract. Even allowing for such exceptions, we may want to retain the basic insight that rules are, on the whole, fairly specific prescriptions, while principles are more abstract or unspecific prescriptions (Braithwaite, 47-48).
Principles and values
Values share with principles a relative degree of non-specificity. According to some theorists, the word “value” suggests intrinsic worth based in an independent theory of the good (axiology), whereas “principle” suggests rightness or wrongness derived from a higher command, prohibition or permission (deontology), such as one often sees in law (Alexy, 87 and 91). We can retain this distinction for our purposes, even as we acknowledge that principles and values appear in both forms, inside and outside law. Or, put otherwise, and with emphasis on principles, it is possible to look at principles both from the perspective of a theory of the good that inspired the law (the constitution, the legal system and the legal project as whole), and from the perspective of the principles’ derivation from higher legal sources, whether commands, prohibitions or permissions.
Principles, then, have a foot in the contingent and contextual legal realm (our history as evidenced by the various constitutional rules we have chosen and the particular course we have taken), and a foot in the more abstract and universally available value realm.
Principles and norms
Finally, the word “norm” can be said to embrace all of the previously mentioned terms, whether they appear or are generated inside or outside law. (We should note that the term “norm” can refer to that which is genuinely normative, evoking a general sense of ought or obligation, or to social norms, which may or may not be truly reason-giving, and may merely reflect patterns of behaviour.) From the perspective of legal pluralists, the law that we have been referring to thus far is “state law” (in the sense of the law made by institutions recognized in the formal constitution) (Merry, 879), and rules, principles and values (collectively, “norms”) can be found both within state law and within other non-state systems, such as Indigenous law, religious law, economic sector norms (health care, sports, industry), street norms and the like.
Having attempted to identify what principles are and, at the same time, reminded ourselves of how porous some of these distinctions are, we move now to a discussion of how principles operate, both in theory and in practice.
How do principles work in theory?
Principles can be important in constitution-making, legislating and governing; however, they present particularly interesting and difficult issues regarding adjudication. Accordingly, it is here that we place our focus.
When judges appeal to a principle, what are they doing? We have already seen how rules are often thought to apply in an open and shut way, admitting of quite precise application. And yet even those who place rules at the centre of their theoretical account of law acknowledge that all rules have a clear core and a less clear penumbra (Hart, 135), with some rules tending to the former and others to the latter. Most “core” issues can be resolved with the aid of good legal advice, or, if necessary, at trial; whereas “penumbral” issues may have to be resolved at the appellate level. Such “hard cases” may involve resorting to broader legal principles (MacCormick, Dworkin). It is a function of both their power and their lack of specificity that principles can exclude unacceptable legal solutions without identifying which of a range of acceptable legal solutions should be favoured. This should not come as a surprise given the uncertain penumbra of some (parts of) rules, and the fact that the distinction between rules and principles is more one of degree than of watertight category. How, then, do judges (notably appellate judges) arrive at legal conclusions in this context?
We have identified at least six principle-related judicial determinations that need to occur (whether explicitly or not). First, judges must identify which principle or principles are potentially relevant to the dispute before them. Second, they must determine what the principle or principles mean, as their meanings are often contested. Third, in the event that more than one principle is at play, judges must gauge whether one principle is more important than the other in the circumstances, or whether they are incommensurable. Fourth, they need to revert to the question of whether, and if so, how, these principles are appropriately applied given the (often-changing) context before them. Especially where constitutional cases are concerned, the relevant context may include wider sectoral or national considerations above and beyond those that the parties have brought before the court, a point which is self-evident in the case of constitutional references (or advisory opinions)(Patriation Reference, Secession Reference, Mathen). Fifth, judges must identify all the possible outcomes that appear to be licenced by the principles in this particular context. And finally, they must choose between these licenced outcomes, assuming, as is often the case, that many outcomes are consistent with the principle(s). It is worth noting that these various principle-related determinations do not exhaust the entire adjudicative exercise. Beyond principles, there are of course other considerations that a judge will have to be attentive to, such as the text of the constitution itself. However, one point we wish to make is that principles will play a role even in the seemingly straightforward appeal to text: the judge will, explicitly or implicitly, consider principled (and related contextual) reasons that permit or require them to apply that text. Principle, then, is woven in at every level of adjudication.
It will now be apparent that judgement, in the sense of practical reasoning, appears to be involved at every step. Judges must judge: this much might seem to go without saying, based on their title. But what does and what should such reasoning involve in a legal context? Facts are sometimes powerful, flagging for us some of the potential errors of our provisional reasoning, but facts do not do this work on their own; some moral considerations have to come into the picture. One might wonder if these moral considerations are limited to the considerations already recognized by the legal system, or whether broader moral values can enter the picture. We might disagree about the relevant moral values, but an appeal to “legal” principles cannot entirely solve the problem: when a legal principle is relied on, it is bolstered by a commitment to a broader moral value that licenses the appeal to the legal principle.
If we keep something like the six principle-related steps just rehearsed in mind, we can appreciate that other conclusions may have been viable and available. So why is one particular conclusion chosen? What else is going on? Some writers refer to a sort of reflective equilibrium, or back and forth between the relevant principle or principles and the particular case and context (see examples in Oliver, 252). A narrow version of this equilibrium moves back and forth between constitutionally inspired principles and concrete legal precedents (Dworkin 155-168) before arriving at a conclusion; whereas wider versions move back and forth between principles in the value domain (Nye) and the social scientific context into which the legal conclusion will play out (Oliver).
We think an appeal to the wider form of reflective equilibrium is inevitable. When we engage in this process, we must be asking ourselves questions both about the broader context in which the decision is made, and about the values that justify the decision we make. This may seem to require a fully independent theory of value. But we need not have one fully worked out. We need only be committed to the idea that this legal principle is in these circumstances morally acceptable, if we are to apply it. But that conclusion itself reaches beyond the system for justification. We have serious disagreements within the realm of value. But what must be the case for any decision-maker is that they are doing something they see as underpinned by some moral value that justifies their decision.
As we have seen in the six-stage decision-making process set out above, principles (due to their unspecific nature) seem to point to more than one possible path. Judges must make decisions at every stage regarding which path they think is right. Principles on their own make a claim on our attention, but a judicial determination or judgement regarding what principle is appropriately applied, and what outcome it supports, is required in order for the principle to have any weight or force. As noted earlier, principles have a foot in both the practical and the value realm: they connect to practical legal considerations determined in part by the legal cause of action, and in order to provide a judge with a reason for action, they must also situate themselves in the value realm. It is that value that is needed, as part of a judge’s judgement, to motivate a determination that some action is the right one. However, such values are far from fully elaborated in the context of law. The process of reflective equilibrium allows some actions to be identified that seem right in both value and practical terms, without having to achieve full agreement on the content of those values.
How do principles work in practice?
So how, practically speaking, do values and context play into the process of judgement where principles are concerned? What is good judgement? In thinking about principles and the value- and context-related judgements that they require both in theory and in practice, we can turn to an unwritten principle that is well established in law: the principle of the rule of law. In the philosophical literature the meaning of the rule of law is contested (Waldron, Tamanaha). Yet, if courts are going to appeal to a principle, they must adopt a particular interpretation of it. We can take the 1985 Manitoba Language Reference as an example.
The six-stage analysis identified earlier can bring to light some of the decision points that were hidden from view. As we progress through the stages, we may suspect that the court employed something like the wider version of reflective equilibrium just noted, including considerations of value and context in support of the elaboration and application of a constitutional principle.
First, we can confidently observe that the Supreme Court of Canada judges identified that the principle of the rule of law was relevant to their decision. The Court was explicit in saying so. Second, it had to determine what that principle meant. We can observe that the very same principle – the rule of law – was already pulling in different directions, seemingly demanding generalized invalidity on the one hand, and rescue from the resulting state of anarchy on the other. Arguably, the judges could have avoided this tension if they had developed a more nuanced idea of the rule of law from the outset, but in the Manitoba Language Reference version the tension in the different meanings of the rule of law was apparently not something that the court wished to highlight. In the Court’s version, it was a constitutional rule (s. 52, set out above) that produced the generalized invalidity, and the principle of the rule of law that rescued the constitution from anarchy. The third stage involved a consideration of whether other principles were at work. In the Manitoba Language Reference, unlike the later Secession Reference, no competing principle was identified. But one can well imagine that a conservative judge, who was uncomfortable with the bold direction the Court was about to take, might have suggested the relevance of the separation of powers principle (Barber, ch. 3). The judges in the 1985 Reference implicitly assumed that the principle of the rule of law outweighed the separation of powers, perhaps through the sort of process of reflective equilibrium adverted to earlier, whereby the application of the principle in context formed part of the to-and-fro of reasoning. Fourth, then, the judges had to revert to the question of how the principle or principles should be applied given the context before them. For example, a smaller quantity of invalid statutes would not have raised the question of anarchy or lawlessness to the same extent. Judges uncomfortable with what they perceived as the prospect of judicial activism might have framed the separation of powers principle as dictating that they do nothing more than interpret the constitution. However, as we have seen, attention to context and value makes that idea of “neutral” interpretation impossible. The rehearsed movement from principle to context and back that we theorized earlier would have revealed that the most radical judicial posture here was one of inaction, of resignation in the face of the prospect of anarchy. The Court was clearly not prepared to accept that prospect. Stage five refers to identifying all the possible outcomes that are licenced by both principle and context, and stage six refers to the selection of a final outcome. It should be apparent that the Court’s simple conclusion justifying the temporary suspension of invalidity in order to enable translation of the otherwise invalid statutes on the basis of the rule of law masked important judgements at each stage.
Conclusion
Without purporting to have provided a definitive account of what principles are and how they work, we hope that this blog assists us in using the relevant vocabulary (rule, principle, value, norm) and adds some useful nuance to the way that principles work, notably in the way that they interact with value and context in reflective equilibrium.
We would like to thank Vanessa MacDonnell for helpful and insightful comments and suggestions regarding an earlier version of this blog. Of course, we are responsible for any remaining errors or infelicities.