Legal Principles and Legal Theory* JOAQUÍN R.-TOUBES MUÑIZ Abstract. Current legal theory is concerned with the presence of principles in law partly because they are at the core of Dworkin’s criticisms of Hart’s rule of recog- nition. Hart’s theory is threatened by the possibility that the identification of some principles follows an extremely relaxed rule of recognition, or even no rule at all. Un- fortunately, there is no conclusive test to ascertain what is the case in actual practice. On the other hand, the evaluative arguments which support Dworkin’s proposal of principled adjudication are forceful but not conclusive. Moreover, since ultimate controversy over values is plausible, judicial discretion may sometimes be inevitable. 1. The Concern for Principles The presence of principles among the normative resources used by the law has long been perceived by legal doctrine and even explicitly stated in legislation. The notion of general principles of law has become familiar in continental legal theory as one of the sources of law, either formally listed as such, 1 or substantively present in promulgated law, 2 or both. However familiar, the notion is by no means uncontroversial. Problems arise as to its nature, status and content, most of which have been addressed in an estab- lished tradition of legal dogmatics. Fine distinctions as between program- matic and normative principles among constitutional provisions, concise formulations of maxims that sum up a general point in legislation, or careful proposals of rationales for systematizing competing legal standards, are © Blackwell Publishers Ltd 1997, 108 Cowley Road, Oxford OX4 1JF, UK and 350 Main Street, Malden, MA 02148, USA. Ratio Juris. Vol. 10 No. 3 September 1997 (267–87) * I am very grateful to Professor Raz for his helpful comments on earlier drafts of this paper. I must also thank the Galician Government (Xunta de Galicia) for a scholarship to pursue research in Oxford. 1 The Austrian Civil Code of 1811 preceded the current trend, stating that “when the case remains doubtful, it must be decided according to the principles of natural law” (cf. Del Vecchio 1956, 4). 2 Cf. Peces-Barba (1987) on article 1.1 of the Spanish Constitution [1978], which declares that Spain endorses liberty, justice, equality, and political pluralism as “higher values” of its legal order.