observing the winding history, especially if the focus is on the nineteenth century
era, it becomes clear that legal doctrines were, for a considerable period of time,
undermined and stated as missing in basic characteristics to be acknowledged as
“legal science”.
3 Thereafter,
4 the advent of legal psychology, law and economics and
generic developments related to the social sciences
5 simply offered empirical
research and theory building in legal matters and were never developed with the
intention of replacing legal doctrines. Nevertheless, in the labyrinthine path of
development, legal doctrines have stood out in the study of law as a normative
system, “limiting its ‘empirical data’ to legal texts and court decisions”.
6 Today,
legal doctrines are considered as being firmly rooted in legal principles. Whereby
legal principles tend to change or shift direction, legal doctrines are soundly
ingrained in law and have a prolonged history.
From a narrow viewpoint, legal principles exist among the “normative
7 resources
used by law”.
8 Although the definition of “legal principle” is deemed to be complex,
9 they are nevertheless, a quintessential part of legal doctrine. This term has a
well-established meaning and is known among continental law theorists as legal
dogmatics, defined as “[a] principle, esp. a legal principle, that is widely adhered
to”.
10 Despite the complexity in definition, one view is that legal principles are basic
norms and are essentially a part of the same notion as legal values and legal norms.
11
As such, the importance of the study of legal principles lies in the fact that it is “. . . a
well established way of legal scholarship striving for autonomy and searching for a
disciplinary proprium behind the multifariousness of norms and judgments”.
12
Although the two terms, i.e. legal doctrines and legal principles, are often used
interchangeably, doctrine from a definitional angle is comprised of principles and
lies at a higher threshold; it “picks up questions from legal practice and discusses
them in a more general and profound manner”.
13
3 Ibid, p. 1.
4 From the end of the nineteenth-century and in the course of the twentieth century.
5 With a focus on law.
6 Van Hoecke (2011). See also Peczenik (1984).
7 Normative refers to what is considered to be the normal or correct way of doing something, as
observed in Kagan (1998), pp. 7–8.
8 Daci (2010), p. 109.
9 Ibid., at 110. The author states that “[t]he definition of a legal principle is very difficult, since
principles sometimes are considered to be legal norms, sometimes to be general legal norms,
sometimes are be considered as standards upon which legal rules should be based”.
10 Black and Garner (2000).
11 Daci (2010). In this article, the author is of the view that legal principles “. . . can be considered as
basic norms that represent the general consensus on basic society understandings”.
12 Kant (2005), cited in Von Bogdandy (2010), p. 95.
13 Pattaro (2005), p. 2.
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T. M. Johansson
era, it becomes clear that legal doctrines were, for a considerable period of time,
undermined and stated as missing in basic characteristics to be acknowledged as
“legal science”.
3 Thereafter,
4 the advent of legal psychology, law and economics and
generic developments related to the social sciences
5 simply offered empirical
research and theory building in legal matters and were never developed with the
intention of replacing legal doctrines. Nevertheless, in the labyrinthine path of
development, legal doctrines have stood out in the study of law as a normative
system, “limiting its ‘empirical data’ to legal texts and court decisions”.
6 Today,
legal doctrines are considered as being firmly rooted in legal principles. Whereby
legal principles tend to change or shift direction, legal doctrines are soundly
ingrained in law and have a prolonged history.
From a narrow viewpoint, legal principles exist among the “normative
7 resources
used by law”.
8 Although the definition of “legal principle” is deemed to be complex,
9 they are nevertheless, a quintessential part of legal doctrine. This term has a
well-established meaning and is known among continental law theorists as legal
dogmatics, defined as “[a] principle, esp. a legal principle, that is widely adhered
to”.
10 Despite the complexity in definition, one view is that legal principles are basic
norms and are essentially a part of the same notion as legal values and legal norms.
11
As such, the importance of the study of legal principles lies in the fact that it is “. . . a
well established way of legal scholarship striving for autonomy and searching for a
disciplinary proprium behind the multifariousness of norms and judgments”.
12
Although the two terms, i.e. legal doctrines and legal principles, are often used
interchangeably, doctrine from a definitional angle is comprised of principles and
lies at a higher threshold; it “picks up questions from legal practice and discusses
them in a more general and profound manner”.
13
3 Ibid, p. 1.
4 From the end of the nineteenth-century and in the course of the twentieth century.
5 With a focus on law.
6 Van Hoecke (2011). See also Peczenik (1984).
7 Normative refers to what is considered to be the normal or correct way of doing something, as
observed in Kagan (1998), pp. 7–8.
8 Daci (2010), p. 109.
9 Ibid., at 110. The author states that “[t]he definition of a legal principle is very difficult, since
principles sometimes are considered to be legal norms, sometimes to be general legal norms,
sometimes are be considered as standards upon which legal rules should be based”.
10 Black and Garner (2000).
11 Daci (2010). In this article, the author is of the view that legal principles “. . . can be considered as
basic norms that represent the general consensus on basic society understandings”.
12 Kant (2005), cited in Von Bogdandy (2010), p. 95.
13 Pattaro (2005), p. 2.
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T. M. Johansson