Rules, Principles, and the Problem of the Limits of Legal Reasoning

Abstract

The analysis picks out one possible use of the concept of principle. The pertinent use concerns the way extra-legal normative claims influence the understanding of the normative character of law and the limits of legal reasoning. It can be based on a contrast between internal and external justification of law. In light of that distinction, legal rules are taken as 'intra-systemic' elements of law while principles are depicted as resulting from reflection on the ways legal rules operate. Legal principles originate from external (moral and political) discourses that concern justificatory issues of law. The conceptual devices of the analysis are used to 'recontextualize' the old debate over legal formalism. Distinctions are drawn between formalism (Kelsen), radical anti-formalism (Unger), strong anti-formalism (Michael Moore), and modest anti-formalism. The paper argues for modest anti-formalism which accepts that internal justification is an intelligible and justifiable framework for handling legal problems but argues that considerations associated with the external justification of law may and sometimes should figure in legal reasoning. The attractiveness of modest anti-formalism comes from its ability of accounting for the reflective self-critical aspect of law. The analysis, after considering Dickinson's and Dworkin's versions modest anti-formalism, leads to the conclusion that one cannot make a strong case for modest anti-formalism without connecting the problem of legal reasoning to issues of institutional design.