On The Legal Principles

The legal principle is an important thesis in jurisprudence. It can be considered a vital solution to the tension between how to promote the development of law and how to maintain the consistency of law. Compared with the legal rules, legal principles are more disputable in the western law fields. The scholars have different opinions from the definition, attributes, characteristics to the functions, identification and application of legal principles. Our research on legal principles focuses on the implicitness of legislation and the definition, status, functions of fundamental principles.We have not grasped the key issuses of legal principles. Therefore, in this paper I compare the different ideas between Chinese and western academicians, analyse the relationship between legal principles and morality , rules and discuss the radical problems (for instance, the identification and application of legal principles). I hope to do something useful to perfect our fundamental theory on legal principles and improve the application of principles.This paper is divided into four parts.Part one of this paper is devoted to the discussion of the definition of legal principles. Some western lawyers regard law as the summation of rules. They deem legal principles only exist in the abstract. Hart is the representative of the people who think legal principles do not exist in practice at all. However there are two shortcomings in Hart's theory. First, it extends the category of"rules". Second, when some legal principles are discovered, lawyers feel sure that they are parts of law. Nevertheless"rules"cannot direct us to find these implied, unknown principles. Also the rules cannot includes them. Thereby we have to admit that legal principles are parts of law. Lawyers discuss legal principles from different points of view—broad sense, narrow sense, attributes, application, functions etc. Legal principles are restricted by the aim of law, and they embody the spirit of law which they belong. Legal principles are stated or implied in positive laws. They are the norms which stipulate certain kinds of social relationship, supervise the reasoning, make the legal system harmonious and uniform. Legal principles are not the implicit norms that legitimatize the discretionary power, but the explicit criteria that restrict the law-officers'judgement. In the difficult case legal principles insure the right result of legal application by creating the escape clause for the positive law.Part two of this paper focuses on the attributes of legal principles. Dworkin explained why we gave the especial worship to law by openning out the relationship between legal principles and morality. It was the structural constraint that makes the principles belong to law. As for the content, there are many aspects overlapping between legal principles and moral norms. After all legal principles are parts of law. They are different from morality on the way of creation, the degree of enforcement, the fundamental conceptions and the incidence.They have clear-cut legal attributes.Legal principles are prescriptive, universal and justifiable. We can see that legal principles are different from rules on the incidence, precedence relation, explicitness and the way of application. A legal principle may act on a series of legal rules. When a legal principle and a legal rule which are in the same hierarchy conflict in the same case, the principle invalidates the rule. Legal principles provide a kind of idea or a kind of reason and lead us to consider these opinions. They are not as straightforward as rules. Principles have weight, rules do not. Legal principles are the elements of law, they possess legal attributes.Part three notes the functions of legal principles. First of all , legal principles embody the spirit of law, decide the direction and inclining of law, so they can supply the intendment and base for rules, identify the legal rules, open out the implicit meaning of legal rules, advance the positive law and make the legal system harmonious. Second, as the social changes are taking place, some outdated rules may breach the aim of law. And also when some legal rules are absent, legal principles can provide a remedy for these deficiencies. Legal principles can let the judges know how to adjudicate and they can balance the stability and accuracy of law. Third, the application of legal principles caters for the development of substantive law. It not only conquers the disadvantage of formalism, but also prevents from going to another polar which is subjectivism. The application of legal principles make the positive law more acceptable to the common people and make the judgements easier to carry into execution.Part four illuminates the identification and application of legal principles. Legal principles are not only theoretic entity. They are more important in the practice. As far as the identification of legal principles, Dworkin thought that some of the legal principles were implicit, they could not be found easily. They came from judicial tradition, so judges should discover them by the facts themselves and make use of reflective equilibrium.The application of legal principles is more complicated. Principles apply not only in the hard cases but also the easy ones. Even if the principles were not written in the positive law, the judges should consider them in the trial. Dworkin introduced the"structural constraint"to make principles not discretionary and make law a perfect system in which every case has its"only right answer". Otherwise in the application area there are two aspects that we should take notice of when we understand the relation between morality and legal principles. First, when there are not correlative norms for the case in the positive law ,the judges could not invoke the moral norms directly to adjudge the case, that is, regarding the moral norms as legal norms. Second, when the judges (or the lawmakers) identify some principles which are not explicit in positive laws, the principles should be morally accepted at large.In conclusion, legal principles combine"what the law is"with"what the law is ought to be"and clear up the severe opposition between subjectivism and objectivism in legal norms area. Legal principles make the law find out the criterion of justice from itself not the exlex things . It is significant to perfect the theories related to legal principles.