Final Comment

The final chapter deals with the metaphor expressed in the book’s subtitle, in order to consider what type of judge is best prepared to face and overcome the paradox of the relation between principles and rules in each concrete case: Judge Hercules or Judge Hydra? The answer will ultimately be the following: neither of them, but instead Judge Iolaus. Based on this metaphor, the paradox of constitutional principles and constitutional rules is presented as a special case of the paradox of justice in terms of systems theory: the paradoxical relationship between closure and consistency of legal system and its openness and adequacy to society. Rules relate primarily to the closure and consistency of law and principles concern primarily its openness and adequacy to society. While the former are associated predominately to the formal argumentation, the latter are linked first and foremost to the substantive argumentation. In this way, the ideas of ‘a single right answer’ and of optimizing balancing are rejected head on, and the precariousness of legal rationality is affirmed.

Through the Still Dominant Models of Division Between Constitutional Principles and Rules

This chapter initially examines the philosophical background of the dominant model for understanding constitutional principles and rules. Thereafter, it analyses this model, paying special attention to two of its trends that build on the works of Ronald Dworkin and Robert Alexy. Dworkin’s idea of ‘a single right answer’ for legal or constitutional questions and the Alexy’s conception of optimizing balancing are questioned. The connection between principles and the ideal judge Hercules proposed by Dworkin is objected to, and the idea that principles are related to the Hydra and the rules to Hercules is outlined. The model of proportionality developed by Alexy is also questioned. This chapter is divided into three sections: moral-philosophical background of the turn in the theory of legal principles; all-or-nothing versus dimension of weight (Ronald Dworkin); and definitive reasons versus optimization requirements (Robert Alexy).

Introduction

This Introduction deals foremost with the inversion of Ronald Dworkin’s metaphor of the ‘Judge Hercules’. According to him, this ideal judge is related primarily to principles and has the main task of closing the legal reasoning in the ‘hard cases’. In my view principles are primarily associated with the Judge Hydra, who has the key function of opening the argumentation chain to the overcomplex societal environment of law. In turn, the Judge Hercules is linked mainly to rules and has the mission of closing the legal reasoning with a ruling of the case. My assumption is that the paradox of modern constitutional law lies in the relation of tension and complementarity between Herculean rules and Hydra-like principles. In this Introduction, I also point out the ambiguity and vagueness of the word ‘principle’ in the different social and cultural fields as well as within the legal and constitutional realm. Then, I depart in advance from different uses of this word, clarifying that the focus of my book is the relation between constitutional principles and rules in the legal and constitutional theory of the turn from the twentieth century to the twenty-first century. Finally, I present briefly the book chapters.

The Use and Abuse of Principles

This chapter reviews the use and abuse of principles in the Brazilian constitutional doctrine and practice. First, the problem of doctrinal fascination will be addressed, pointing out theoretical and jurisprudential mistakes. The misguiding and acritical reception of the theory of principles in Brazil is questioned considering leading Brazilian constitutional scholars who transplant foreign theoretical models without taking seriously the Brazilian legal order and its social context. Second, the book makes some critical comments on confused constitutional practices related to principles, considering some cases judged by the Brazilian Federal Supreme Court. A historical constitutional case and some recent constitutional cases are analysed considering the disparate application of balancing and proportionality.

From Classic Distinctions Between Legal Principles and Rules

This chapter analyses the main theoretical currents that have addressed the matter of legal principles and rules before the explosion of the theory of constitutional principles. This is about the division between legal principles and legal rules based on the criteria of discretion, imprecision, and generality of these two types of legal norms, or on the criterion of their reference to goals and values. At this point, the general theory can hardly be distinguished from the constitutional conception of principles and rules. The chapter is divided into three sections: norms between texts and facts; imprecision, discretion, and generality as criteria for distinguishing between principles and rules; and reference to goals and values as a criterion for distinguishing between principle and rules.

To the Search of Another Model of Difference Between Constitutional Principles and Rules

This chapter presents a model for distinguishing between constitutional principles and constitutional rules, emphasizing that it concerns a legal-doctrinal difference that emerged with modern constitutionalism. In this context, principles are defined as reflexive mechanisms in relation to rules, and the circular connection between them becomes the focus of analysis. It also discusses the performance of principles and rules in the process of constitutional concretization as well as pointing out the requirement of a constitutional principle theory adequate to the complexity of contemporary society, even in the context of transconstitutionalism. This chapter is divided into five sections: locating the problem and conceptual contours; constitutional principles as a result of the positivization of law: principles and rules as an internal difference of the legal system; the circular relationship between constitutional principles and rules; from optimization to competition: limits of ‘balancing’; and intra-principle collision, double contingency, and functional differentiation of society: towards a complex theory of principles.