Between Principles and Rules

Abstract. The relationship between human dignity and Law, and between Law and Moral, are closely linked to the way in which we think of Law and theorize it. E.g.: if we understand Law as a set of commands assisted by sanctions, this, firstly, certainly does not enhance the dignity of the subjects of the Law, who are conceived as passive recipients of orders. Secondly, it leads to separate Law from Moral, which cannot be coerced, but drives also to imagine Moral as a sort of Law, a set of rules addressed to individuals from the outside (from traditional habits, for example). One meaning of the word 'moral' fades, the one in which it indicates a quality of every single human being: 'moral' because intelligent, conscious, capable of choice. The same happens if we think of Law as a technique of social engineering and control, which directs human behaviour (even towards ends deemed morally valid, or useful). In all cases the result is seeing both Law and Moral as 'objective' realities that operate separately from the moral contribution of individuals, without the contribution of their sense and their intellect. In a word, separately from the subjective dimension. Whereas it is in this dimension that human dignity is rooted. These considerations presupposed, the paper starts by recalling Dworkin's theses, which have meant a big change in the conceptions on Law and its relations with Moral. What, precisely, and how much have they meant in favour of a more 'dignified' (morally free and equal) vision of the 'subjects' of Law? Without intending to give a general answer to this question, but aiming only to propose a practical example, the chapter follows the paths of Dworkin's thought in a legal culture strongly imbued with normativism, legal positivism, and legal instrumentalism, such as the Italian Constitutionalism. Here, ‘principles’ and ‘rules’ have been understood as functional equivalents of the 'norm' and not much has changed in the traditional view according to which Law is a social engineering instrument, to the performance of which the moral freedom of the agent is scarcely relevant. This is due, the chapter argues, to the unwillingness of many scholars to recognize as a true 'principle' one of Dworkin’s examples, which is a regula iuris rooted in Roman Law and in the 'Ius commune': the prohibition of unjust enrichment. After suggesting some historical and cultural reasons that may have hampered the recognition of a principle in a regula, the chapter compares the dominant views with Alessandro Giuliani's alternative reading of the principles/rules issue. Giuliani’s point is that principles are regulae, exactly in the sense of the ancient regulae iuris, which are as many constitutive principles of Law. The regulae are ‘observations’ and ‘interpretations’ of human behaviours; they are descriptive more than prescriptive; they function as centres of argumentation oriented by a logic of the ‘preferable’ which is rooted in experience and in the common opinion, Giuliani maintains. Thus, the regulae express the connection between Law and the world of human action; they are reminescent of an idea of Law not separated from the subjective experience. Thinking of principles as regulae, Giuliani renews the theme of the ‘internal’ Morality of Law, arguing that Law always presupposes the intelligent cooperation of (and between) human beings. This brings to an intense re-evaluation of human dignity – as freedom and equality of and among moral beings in Law, which Giuliani evokes with the dialectics between the Moral of Obligation and the Moral of Virtue