THE EMERGENCE OF PRINCIPLES
|There are two criteria for a level of legal activity which can
justifiably constrain the exercise of
laws. One is that it must emerge out of the incongruencies that arise out of the administration of
laws, and two, It must deal with the application of laws and not with their creation. In modern
positive law that level is judicial review and its mechanism is legal precedence. These limit the
interpretation of laws to standards that have already been tested and determined to be
acceptable. Thus every questionable interpretation of a law doesn't have to be re-fought every
time it comes up. Judicial review is a higher level of the legal system constraining the
administration of the laws themselves to maintain stability in the face of overwhelming varieties
of legal interpretation. However, review alone is not sufficient. it deals with specific
Interpretations about the ways that laws deal with specific classes of cases. Judicial review itself
must be constrained by a level with even greater abstraction, one that corresponds to Luhmann's
level of social values; this is the level that corresponds to Dworkin's theory of legal principles.
It might seem that as I discuss Dworkin's concept of principles there is a point of opposition between his ideas and mine. Arguing from the view of an essentially Just society, his two principles appear to derive from some natural law while analyzing the structure of legal systems from a sociological point of view I arrive at descriptions which will include his but only as one possibility out of many. But keep In mind that Dworkin has developed his principles out of a study of the way Judges in actual essentially Just societies make decisions. Part of my contention is that a society will be a Just society only if those who are responsible for enacting its laws want it to. Thus a Just society is one possible expression of normative structure which a society may choose, but need not. However, if the normative structure is seen as a complex system having the property that the higher levels emerge from and at the same time constrain the lower then it can be shown that a more just society is more likely to be more stable than one which is less Just.
In "A matter of Principle" Dworkin argues effectively that his principles actually do express the actions of Judges involved in Judicial review better than those alternatives which have been attempted by others. What I want to show is the relationship between these two principles and my theory of complex structure. Let us begin with the principles themselves.
The first principle seems to lead us Into controversy since the meaning of equality can be taken In any number of ways. For example, in one society where the majority of the people feel that a minority group within the society is incapable of deciding moral Issues on their own, making such decisions for them would be considered treating them with concern and respect. In another society this might be taken also to mean that all persons in the society must be maintained at relatively equal economic levels. These issues do not concern Dworkin because he is not developing a theory of Justice. He is concerned with the principles Judges use when they make legitimate political Judgments. That means that assuming any set of standards a society may adopt for themselves, the laws that they pass must be judged as they apply to the citizens of the society. If they apply equally to all then they are legitimate, If not then they are Illegitimate.