Juristica International

I was inspired by several things in writing this article, at least two of which were a lucky coincidence. The first has to do with the 15^th anniversary of the Constitution of the Republic of Estonia, and the second with several research papers on important problems concerning the working of constitutional courts and constitutional law which I came upon when studying literature on constitutional law and constitutional review for the above anniversary. But there is also a third factor, an international colloquium “The Future of the European Judicial System — The Constitutional Role of European Courts” *1 held in Berlin in 2005, where among many other questions the issue of constitutional courts in states with revolutionary changes in entire socio-political system was raised.

This issue undoubtedly holds significance because of where the Constitutional Review Chamber of the Constitutional Court of the Republic of Estonia is positioned in the legal system and due to the content of its work, especially some basic principles of the Chamber, two of which I have chosen for deliberation in this article. Those two are principles of law and legal dogmatics, which are significant methods (means) of formation of opinions, argumentation and of course also vocalising how the legal reality (in its broad sense) corresponds to the word and meaning of the constitution. The function of constitutional courts is not merely the traditional administration of justice. Work of constitutional courts has many contact points with legal policy. It is constitutional courts that are most influenced by legal policy, and yet it is constitutional courts who to some extent make legal policy. The author is of the opinion that principles of law and legal dogmatics are instruments that “work” for the benefit of implementation as well as formation of legal policy. Legal policy should be interpreted as shaping of social and political life by means of legislative provisions drafted and established by public authority. *2 Such a definition also includes implementation of justice. Also a jurist can be active in the formation of legal policy. He or she has two tasks: a reasonable reconstruction of the problem that needs regulation, and thereafter a quest for a better solution. If he or she also works with constitutional law, then he or she needs to understand political processes for better lawmaking.

Concerning dogmatics — when jurists talk about dogmatics much remains unclear, even the definition. Moreover, mentioning dogmatics sometimes even evokes negative emotions. The reason for this is that in many cases dogmatics — regardless of the area of application — is understood as something unchangeable, even petrified. Below I will deliberate over whether law and also jurisprudence should say farewell to dogmatics, and explain what dogmatics exactly stands for. Those issues need to be reviewed not only in the context of national legal orders but also in the European context. The question of boundaries of constitutional law was clearly raised at the above Berlin conference, where discussion was heated and a demand for the development of contemporary European constitutional law theory was voiced. *3

Law is in fact a special instrument of power for the realisation of political will. In that way each legal provision embodies a piece of normatively secured policy. It is nevertheless a fact that courts do not base their judgments only on legislative provisions. For courts the regulatory basis for decisions is much wider. As I said, this article views principles of law and legal dogmatics as legal guidance for making relevant decisions, especially in constitutional courts, which have the most direct and open contact with law and legal policy.

1. Principles of law

Indeed, what are principles of law? One of the shortest definitions could be “very important general rules”. Yet, not everybody understands why that is the case. One explanation is that principles of law have to do with values. *4 Another opinion is that the importance of principles stems from their bond to the idea of law *5 , the most important component of which is justice. A reference is also made to the link between principles and the highest law. *6 The significance of principles is also associated with their sense of legal order as such. *7 The importance of principles is sometimes underlined in the context of the so-called metanormative function. *8 The study of principles has basically emerged in the context of globalisation. *9

Contemporary literature in the field that has most contributed to the theory orientated discussion on principles in German language is “Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts” *10 by J. Esser published in 1956, and “Taking Rights Seriously” *11 by R. Dworkin published in 1977 regarding common law. The above authors agree on certain things, but have significant differences in others. *12 Both works underline that principles refer to the logical structure that derives from provisions, and not only in the sense of different gradation, but also definite differentiation. What are the differences in Esser’s and Dworkin’s positions on principles of law?

For Esser a principle always means a so-called larger leeway for the judge than offered by a provision in a legal source. The size of such a leeway depends on the fact that a judge must somehow form that principle. Dworkin is on an entirely contrary opinion that a principle narrows a judge’s decision-making space. For Esser a principle is needed to justify a judgment in the legal space, but for Dworkin it is a reference to something important. For Esser principles are separate from ethics. Dworkin on the other hand considers principles to be ethical, and the existence of principles disproves the positivist understanding of separation of right and moral; whereas according to Esser principle of law applies only when used in judgments. For Dworkin principles of law apply because they are just (provided that they are coherent with the legal order). *13

The well-known legal theorist Robert Alexy finds, based on Dworkin and being familiar with Esser’s dogmatics, that principles are distinct optimisation orders, which need to be complied with at different levels. Whereas provisions are rules that either must be followed or need not be followed which makes them definitive. *14 Thus, implementation or formation of principles has nothing to do with deductive subsumation process. Another difference between principles and provisions is the fact that in case of conflicting provisions collision rules apply, whereas a conflict of principles is solved by “considering the circumstances of the case the preferential regulation is determined between both possible practicable principles”. *15 Here preferential means that what follows is the required legal consequence deriving from the principle. The third difference between principles and provisions, according to Alexy, is that the higher the level of non-compliance, the bigger must be the importance of complying with the second principle. *16

How to recognise principles and find them? An argument can be made for the importance of principles and what differentiates them from provisions, but without recognising them, the above is practically useless.

In civil law the most natural and also logical place is to look for principles is the objective law itself. Text of a law may expressis verbis denote a certain part of a text as a principle, but a principle may be formally defined without being expressly named as a principle. *17 Another possibility to find principles is to analyse current law (laws, regulations and administrative provisions). Principles are established the same way both in civil law and common law legal cultures. *18 The underlying idea is that principles of law cannot be and are not something completely separate from objective law itself. Figuratively speaking, principles of law are similar to abstract provisions, but at a more general level. Nevertheless, two branches can be distinguished: the first is orientated to finding a traditional provision-based generalisation, and the other additionally includes study of the relevant political-moral context. *19 Principles of law are formed also in jurisprudence. What is especially important in this context is that court practices, especially that of constitutional courts, can significantly contribute to principle of law. *20 In rule of law the role that courts play in formation of principles is very natural and even necessary. It is courts in rule of law who are the last instance of judgment. Therefore one can even speak about the triumph of judge-made law. *21 In Germany , for example, first cases were filed already at the dawn of the 20^th century. Legal theorist B. Rüthers even argues that the most important part of today’s law is no longer statutory law, but the judge-made law of the last instance. *22 Similar situation can be confirmed in all parts of today’s legal orders, but is especially recognisable where objective law has high level of abstraction (e.g., constitutional law) or where regulations have gaps. *23

I would like to elaborate on the functions of principles now. To explain their purpose — why they are needed at all. Generally speaking, the function of principles may be reduced to the function of a legal provision. *24 We can thus speak about the regulative function of principles. Direct regulative influence cannot be excluded *25 , but in most cases the scheme operates through and by certain complete legislative provisions. This leads to but one logical conclusion: application of principles allows arranging the reality relevant to the law in accordance with the governing political will. Application of principle in civil law legal culture certainly requires some effort, since in most cases principles are not written down in legislation, but need to be formed and thereafter applied. Principles of law born out of analysis of positive law may often have a so-called heuristic function. Literature rightly notes that understanding and use of principle in the heuristic sense was first characteristic to germanists in the 19^th century. *26 It had to do with the fact that putting the idea of general codification into practice made legal order codified in quite an incomprehensible way and contained many contradictory provisions. There was an attempt to reduce all that to essential principles only and give comprehensive structure to legal order. *27 The same function is also needed in today’s rule of law. Structure and comprehensibility of legal order are the key factors of legal certainty. It is legal certainty, being a component of the idea of law and at the same time an independent principle of law, which in many cases is the immanent condition of effective functioning of society. But principles have an important role in the application of law. This gives a reason to mention the practical legal function of principles. The practical legal function of principles means first of all that principles play an important role in argumentation. Literature denotes principles understood in that way to be rules of argumentation. *28 When talking about argumentation principles, it is only natural to speak about interpretation. Argumentation is after all the part of interpretation which, figuratively speaking, “meets the world”. It is therefore well justified to denote the practical legal function also as an interpretative function. *29 Of course, it does not make sense to use that method upon routine interpretation. But it is useful if two or more possible interpretations exist. Clear preference should be given to what is compatible with principle of law. Exemptions are possible, the most significant being perhaps a situation where a principle of law has definitive limits. Such situations should be solved restrictively. *30 Practical legal function also includes situations where principles are used in argumentation as a support method to reach the desired objective. *31 In practice principles can be used to reinforce legal power of a judgment. Here principles would be the so-called allowed arguments to help, alongside and with the obligatory arguments, to come to law abiding decisions.

I would like to point out a situation where principles obtain a very powerful meaning in legal practice. Namely, when a judgment is based solely on a principle of law. This is possible due to the fact that principle of law is — as mentioned above — with a very high level of abstraction. Moreover, such an option to use principles of law leads way to practice of avoiding formal reference to outdated provisions, which live on through the implementation of the principle of law. Use of principles of law in legal argumentation is a method how comparative law can influence national decisions. Use of principles of law allows referring to provisions of other legal orders and builds sort of a bridge between national and foreign law. *32 Literature in the field also underlines the connection between principles of law and moral. Interestingly, even celebrated legal positivists have done the same, not to speak about followers of natural law *33 , whereas for the latter principles are not an easy means to justify arbitrary moral but the embodiment of positivistic moral. And finally, I cannot help but note also the fact that the advancement of law by principles should also be treated as a practical legal function. *34 Be it added that one of the founders of the discussion on principles J. Esser was the legal scientist who, unlike earlier study of method, which argued that principles of law are established by a judge, highlighted the advancing role of principles of law themselves. *35 This function has always played a greater role at places where legal order is young, lacks or has contradicting doctrines and legal dogmatics.

To conclude the discussion on principles of law I would like to briefly rest on the argument that the validity of legal acts depends on their conformity to principles of law. Literature denotes this situation as the function of scales of principles of law. *36 For the sake of clarity it should be said here that traditionally legal orders have vertical structure, which means that provisions placed higher are a priori predominant over lower legislative provisions. The same applies to principles, which can also be found on different steps of the vertical legal order. We also mentioned the fact that courts can form principles (European Court of Justice), which are applied without a reference to a constitution or constitutional law (invisible constitution). There is nevertheless a situation where the formed principles have validity scale not because they are principles but because they are ranked higher in the legal order. It is possible that principles of law get incorporated in constitution but it is does not have to be this way. Not all principles, and especially in private law, have made their way into constitutions. Thus, the function of scales is not specific to principles, but a hierarchical maxim intrinsic to legal orders. *37

2. Legal dogmatics

It was mentioned in the introduction that legal dogmatics cannot be univocally defined. Supporters of multi-level approach *38 denote legal dogmatics also as practical jurisprudence. The reason for that is because legal dogmatics stands the closest to legal practice in the context of multi level study of law and is most directly linked to reality in the cognitive sense. Dogmatics has traditionally two levels: first the general level, where dogmatics is understood as scientific processing of all legal material. *39 In a more specific sense dogmatics is understood as sentences that form a certain system, which enable to conceptually and systematically value the application of law. *40 This is the level where dogmatics differentiate according to their subject areas. Thus, area-specific dogmatics are “[…] “saved” collections of right decisions, i.e., decisions that are reasonably grounded in the framework of the current legal order”. *41 Yet, there have always been critics of legal dogmatics. Reasons have been different, but one motif is that dogmatics cannot stand the test of time, because it should intrinsically depict something changeless, petrified. Giving such content to legal dogmatics would indeed confront it to the actual quality of life and the requirements that the ever-changing reality poses to and expects form law. Jurisprudence knows such a situation as a cyclically repeating argument over liberating the “current” dogmatics from its historic roots. That debate tends to surface especially when society is going through profound changes. It is thus an ancient topic for debate. *42 B. Rüthers writes: “Examples show that dogmatic arguments over principles are regular side products of actual or desired turning-points. […] Those standpoints and discourses have lead to an expansive divorce between legal dogmatics and history of law. Today, these are two different disciplines in Germany in the sense of subject, methods and interest of study.” *43

Legal dogmatics should nevertheless not be dreaded. One has to keep in mind that legal dogmatics is not a collection of dogmas as such, but a study of dogmas (regardless of how much those dogmas have to do with history). Dogmatics has different meaning and weight, even function, in different subject areas. What is common with all dogmas is probably the fact that dogmas represent binding, recognised and usable basic knowledge for a certain field, whereas the nature and the degree to which they are binding may differ greatly. Jurisprudence has already since its inception expressed a tendency (even need) to formulate rationally provable basic standpoints. *44 We can regard as an axiom of today’s jurisprudence of values the argument that a legal judgment is one based on values, and that the first source to look for values is the constitution with its binding catalogue of fundamental rights and liberties. In this context — i.e., applied to law — dogmatics means explanation of fundamental values, solutions to as well as reasons of problems. “Dogmatics must explain current law with rational persuasion power and in the light of generally accepted fundamental values (beliefs on values). It is the intrinsic system of legal order that has evolved over different stages of development, is non-compendious and often controversially transcribed.” *45

He also deliberates whether the time has come to abandon dogmatics in Europe, or if it has already actually happened. B. Schlink writes that jurisprudence also has a different path. A glance on American-type perception on constitutional law reveals that it is not characterised by dogmatic systems, but by cases and chronologies of their judgments, with significant and binding notes appended. Chronologies do not form dogmatic systems, but they do give a co-ordinated complex picture. It is based on stare decisis, a principle that requires abiding by decisions that are once already made. *46 In case law the stare decisis principle is the functional equivalent to dogmatic creation of systems in a legislation or regulatory provision based legal culture. We cannot find the stare decisis principle written down in constitutions or other laws — it is an object of argument the subject matter of which is clear to everyone. *47 What makes one think is what B. Schlink writes in his analysis of German constitutional court practice: “The changes in the practice of administration of justice at the German Constitutional Court are neither inspired by dogmatic tuning nor do they allow to be interpreted by the stare decisis principle, which is doctrine that allows derogations from the basically agreed way of administration of law. These changes do not react to new practical needs, new facts or new legal bases [...]. German constitutional court says farewell to the tradition of dogmatic jurisprudence and replaces it with a causative tradition of administration of law. In the author’s opinion it is not a rational way, though. Letting dogmatics go does not automatically mean commitment to precedent. What rather happens is that commitment to dogmatics is replaced by non-commitment to precedence and commitment to nothing.” *48

The above is indeed part of the reality of today’s administration of law. I consider it perfectly normal that in Europe, where statutory law and case law have existed side by side, those two legal cultures tend to somewhat approach. I am not, and I could not be, talking about substitution of those cultures — which B. Schlink seems to be most afraid of — but the convergence and entwining of relatively independent cognitive legal cultures. It is thus a process both historical and objectively grounded. B. Schlink has probably felt so as well, since he ends his article with a chapter titled “New Constitutional Jurisprudence”. *49 The need for qualitatively new theory of constitution was spoken about also at the forum on constitutional courts in 2005. *50

Appeals to give up legal dogmatics should not be taken seriously. Legal dogmatics can contribute to legal practice. First I would remind the regulating role of legal dogmatics. It is legal dogmatics that helps to organise — or even systematise — the ever expanding legal massive of law. Without dogmatics the today’s practice of law would probably be incomprehensible. The certain order created by the legal dogmatics helps to cast a glance at the inner value system of a legal order. Legal dogmatics has always played the role of a stabilisation agent. The observations settled in legal dogmatics are applicable to regulated areas of different quality. Today legal dogmatics helps to bring two different legal cultures closer to each other. Without legal dogmatics tensions between legal cultures would persist and the approaching of those cultures could be taken as substitution. At least in the civil law legal culture it is the legal dogmatics that helps to ensure that disputes of the same quality would not be argued over and over again, but be based on the existing dogmatics that has valued certain solutions and offered a dogmatic pattern of solution. It must not be forgotten that legal dogmatics has been and will be born in situations of tension — through arguments and even confrontations. But once being established, it is difficult to withstand and argue with it. That should be the case at least in a rationally understood legal practice. However, legal dogmatics cannot be something petrified, and if legal practice ignores a dogma, then it must be motivated, i.e., grounded with valid arguments. The thing with law is that repeated regulation of similar situations may, for example, be motivated with different ends in the view. Lawyers solve yesterday’s cases on the basis of week-old laws. This means that the objective of legal dogmatics cannot in any way be eternalizing existing guidelines, but neither can it be effortless neglect of the existing. Literature in the field argues: “For the sake of legal certainty deviation from traditional dogmatics cannot be justified even if there are good arguments for the deviant solution. The motivation behind the deviation must, in addition to breaking the already appreciated doctrine, justify also the society’s loss of trust against the current and thus far recognised legal order.” *51 Thus, if a ruling is made against current dogmatics, it requires a substantial load of argumentation. For the applier of law legal dogmatics is a legally binding limit, or more precisely — legal dogmatics is a boundary stone for legal interpretation. *52 We can but agree with systems theorist N. Luhmann who is of the opinion that legal dogmatics binds applications of law with constitutionalism, principles of democracy and separation of powers in a rule of law. To a large extent it determines the mutual relations between the program (law, principles of law, dogmatic statements) and solutions. He defines the terms and boundaries of the leeway for the judge’s decision to limit the admissibility and pattern of argumentation of new constructions for solutions to legal problems. *53

In this chapter I would like to underline also dogmatics’s connection to legal policy. In reality countries do not actualize timeless values or timeless justice, but orientate to values scales accepted in the society (the today’s globalised world). “It is in this “century of ideologies” [the 20^th century — R.N.] […] when the tense and often ignored issue of law and metaphysics or also law and ideology emerges. *54 This means that even within one state different understandings of “justice” often compete at the level of government, parliament and also administration of justice. The traditional standpoint worth supporting in application of law is that in a democratic state the source for the application of law is the written legislation. This is the only way to implement the legal policy objectives that the legislator has drafted. Here every absolute legal provision is a scale of behaviour for the applier of the provision. Any interpretation based on a provision must generally reveal the point or objective entered into that provision by the legislator. Thus, the applier of the law should above all find those values in the provision, which were considered as values by the legislator. *55 But since understanding of a text requires understanding of the reality which that provision attempts to regulate, then it may happen that the quality of the reality has since the adoption of the provision considerably changed. Tension arises between the historic reality and the present reality. The decision should obviously be made on the basis of current scales of values. In other words, the structure of facts and the perception of values are changing. A question arises whether and how can “old” legislative provisions be reduced to new factual circumstances and perceptions of values in order to be put into practice. Here the problem could probably be solved not by the traditional interpretation of law; instead legal dogmatics would be in the service of the applier of law in the meaning of judge-made law. *56 The situation has been critically assessed, and it is argued that in essence it is a question of power sharing between parliament and legal authorities. *57 Laws grow old and have in some sense gaps already at the moment of adoption, because life is dynamic and cannot be put on hold with an adoption of a law. That is why giving rational meaning to laws has always been and will always be legal authorities’ long-term constitutional task, and legal dogmatics strongly supports the attainment of that task. In such a situation judges are on one hand of course bound to laws, objective law, but on the other hand they are engaged in the formation of legal order with the help of, inter alia, legal dogmatics. Upon the separation of powers in a rule of law it is thus not justified to strictly separate the application of law from any activities which help to develop judge-made law. Here I would not like to subscribe to the opinion that a judge must clearly recognise “[…] whether he or she is acting as a “servant of law” […] or is a “builder of legal order” or a “legal piano payer” who forms law (judge-made law) on the basis of legislation”. *58 Through judge-made law and legal dogmatics a judge inevitably takes hand in legal policy. It is clear that judge-made law has changed dogmatics. Jurisprudence has over times always with the help of “good interpretations” searched for some uniform internal system for legal order, whereas the central starting points have been goals of objective law. But we also need to see and admit that a dual nature of norm creating (or norm shaping) power is inevitable in a rule of law. Objectively and actually the responsibility lies with the legislator as well as the judicial power, especially higher judicial power. Guidelines of legal policy thus stem not only from objective law (legislation), but also to some extent from legal authorities. *59 What needs to be avoided is a parliamentary democracy becoming a state where instances of court create their own “free law”. *60 Principles of law and legal dogmatics serve as a “compass” for judges, which, if used, help judges to come to a law-abiding decision.

3. In place of conclusions

It can be concluded from the above that the use of both principles of law and legal dogmatics includes a certain legal policy component. It is natural that this process will thrive, because courts, like any other governmental power centres, tend to take on more powers and tasks, not give away. In some ways it also concerns constitutional jurisprudence. Its task is not to stop or reverse that process, but the process must change constitutional jurisprudence. It is also clear that it is more and more difficult to rationally form and systematise contemporary legislation and even more so constitutional review by means of dogmatic theories. In legal policy dispute it is correspondingly more and more difficult to forecast constitutional court judgments by the means of merely traditional legal rules. What position should constitutional judges take in that situation? They should probably engage actively in critical discourses with colleagues and also the public. Discourse with other colleagues in the same profession (the so-called judge dialogue) is especially needed. May it be noted here that in jurisprudence the most important cognitive method is the free discourse that gets inspiration namely form practice of law, especially from administration of justice. Yet, sitting judges are required to distance themselves from current political debate. *61 This is primarily necessary for the protection of the profession of judge as a politically neutral profession. *62 It definitely somewhat also depends on the personality of the judge. The Constitutional Court of Lithuania, which is mainly formed of university professors, has gained the reputation of a so-called liberal interpreter, by argumenting its judgments with principles hardly to be found in the constitution. *63 Lithuanian supreme judge E. Kuris deliberates on what exactly should be the legal basis for the development of a constitutional system, if speaking about non-elected and non-accountable constitutional courts (the so-called negative legislator). Is it even possible in a democratic system to control constitutional courts by limiting their role in constitutional policy? The author sees two solutions here: one is judicial self-restraint and the other free professional constitutional discourse. It is in any case clear that constitutional court rulings, containing official constitutional doctrine, are supplementary source to law. *64

To encourage constitutional courts, may it be said that also many legal scientists do not have the patience to wait for legislator to come up with solutions, and they see jurisprudence as a value adding science *65 , being at the same time aware that rational legal policy has several obstacles and hindrances. *66

The summarising word of advice to constitutional courts could be the traditional ending remark of Roman consuls: feci, quod potui, faciant meliora potentes —I have done what I could; those who can will do better.