EU criminal law and the republican need to harden principles into rules

Published date01 September 2017
Date01 September 2017
DOI10.1177/2032284417723704
AuthorPaul De Hert,Julia Muraszkiewicz
Subject MatterEditorial
Editorial
EU criminal law and the
republican need to harden
principles into rules
So much has been written about Brexit. The EU legislative machine seems to be spurring all the
energy devoted to this ongoing divorce procedure undesired by at least one of the two parties
involved. In times such as these, there is space for a more reflective editorial, that briefly goes back
to a classic chapter in legal education and theory, which deals with norms, rules, and principles. We
have an array of principles in criminal law: the principle of legality, the rule of law, strict inter-
pretation, ne bis in idem, presumption of innocence, the list goes on.
1
But what are they again? Are
they the same as rules? Assuming there is a difference between the two concepts, why discuss them
in the European criminal law context? Should we leave clarifying principles to judicial lawmak-
ing? Lastly, and importantly for 2017, how can they help us?
Dworkin on the difference between principles and rules
In his attack on positivism, Ronald Dworkin extensively discusses the difference between rules and
principles.
2
Dworkin’s starting point is Hart’s positivistic approach that identifies legal obligations
as only deriving from rules of law, enacted according to specific procedures that account for their
validity.
3
Dworkin challenges this positivistic approach by arguing that a better theory to describe
the social situation should include not only rules but also more general standards such as policies
and principles. According to Dworkin, all norms are either rules or principles. Legal rules,
Dworkin argues, are to be conceived of in an all-or-nothing fashion. They are either valid, and
in that case they must be respected, or invalid. If there is a conflict of rules, a possible way to solve
it is to envisage an exception to a certain rule.
4
Principles on the contrary are to be conceived in an ‘‘optimizing’’ perspective. They set an
optimum standard, which has to be complied with, compatibly with the factual or legal situation.
5
If there is a conflict between principles, this does not necessarily mean that either of them is
1. On principles in criminal law, see I. Rakar and B. Ticar, ‘‘Normative Principles in the System of Criminal Justice,’
European Journal of Crime, Criminal Law and Criminal Justice 24 (2016), p. 135.
2. R. Dworkin, ‘‘The Model of Rules,’’University of Chicago Law Review 35(14) (1967), pp. 14–46.
3. Op. cit., p. 17.
4. Op. cit., p. 25.
5. For a description of the optimization thesis, R. Alexy, ‘‘On the Structure of Legal Principles,’Ratio Juris 13 (2000),
pp. 294–295.
New Journal of European Criminal Law
2017, Vol. 8(3) 277–283
ªThe Author(s) 2017
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DOI: 10.1177/2032284417723704
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