ANTINOMIES BETWEEN IMPLICIT LEGAL PRINCIPLES: A SOLUTION TO THE TOTAL-PARTIAL ANTINOMY

Transcription

1 Luka Burazin ANTINOMIES BETWEEN IMPLICIT LEGAL PRINCIPLES: A SOLUTION TO THE TOTAL-PARTIAL ANTINOMY 1. Introduction One can distinguish between two main types of legal standards: legal rules and legal principles, both often called legal norms. The distinction between legal rules and legal principles has been of great interest to legal theory. Some say that the distinction is a conceptual one (generic or logical distinction), 1 and some that it is only a matter of degree. 2 As regards the former view, it is claimed that there are certain criteria for such a logical distinction: the hypotheticalconditional character of rules and principles, the final mode of their application, and the normative conflict criterion. 3 From the normative conflict aspect, it is claimed that the contradiction between rules embodies a true conflict, which can be solved by declaring one of the rules invalid or by creating an exception, whereas the relation between principles consists of a juxtaposition, 4 which can be solved with weighing that assigns each of them a dimension of weight. The balancing or weighing of principles by reference to their dimension of weight or importance seems to represent the prevailing method for solving contradictions (antinomies) arising between legal principles when the latter are applied in practice. However, as I argue in the paper, the method of balancing or weighing might not be the only method for solving antinomies or at least a specific type of antinomy between implicit legal principles (the socalled total-partial antinomy, according to Ross s taxonomy). Instead of resorting to the prevailing method of weighing or balancing principles, I argue that the criterion for solving the so-called total-partial antinomies between implicit legal principles could also be the classical juridical criterion of speciality (lex specialis derogat legi generali) which is one of the criteria used for solving antinomies between legal rules. Despite the fact that the greater part of the argument in favour of the criterion of speciality also seems to stand in the case of antinomies between explicit legal principles, the present paper does not deal with these antinomies. 1 See, e.g., R. Dworkin, Taking Rights Seriously, Harvard University Press, Cambridge (Mass.), 1977, pp See, e.g., H. L. A. Hart, The Concept of Law, Oxford University Press, New York, 1997, pp For an overview of such distinction criteria see H. Avila, Theory of Legal Principles, Springer, Dordrecht, 2007, pp Ibid., p

2 The argument will be advanced by analysing the so-called City Cemetery case which derives from Croatia s contemporary judicial practice and went through all three decision-making levels (Municipal Court, County Court, Supreme Court) Facts of the City Cemetery Case In the case in question the dispute concerned the right of use of two graves at a public cemetery in the city of Zagreb. The claimants requested that the court find that they, and not the defendant, are the exclusive holders of the disputed right to use the graves and called on the court to order the defendant to sustain the claimants' registration as such in the relevant grave register. The undisputed facts of the case are as follows: The late Ms. X (in 2000) was the holder of the right to use three graves and was registered as such in the relevant grave register. Two years prior to her death (in 1998), she concluded with the claimants a contract to assign the disputed right to use the two graves (hereinafter: the disputed right of use), whilst retaining the right to use the third grave for herself. The claimants did not register the disputed right of use in the grave register which they had acquired under the said contract. In the inheritance proceedings instituted following her death, her son Y was named the sole heir in the final decision on inheritance of April Further, on the basis of a submitted excerpt from the grave register which showed the late Ms. X was still registered as the holder of the right of use of all three graves, it was decided that the disputed right of use was included in the decedent's estate. As the heir, Mr. Y was registered in the relevant grave register as the new holder of the right of use for all three graves. In August 2002, Mr. Y concluded a contract of assignment of the disputed right of use with the defendant after having presented the latter with the final decision on inheritance and an excerpt from the grave register proving he was the holder of the disputed right of use. Thereafter, the defendant was also registered in the grave register as the new holder of the disputed right of use. Neither party disputes the fact that the defendant acted in good faith when she concluded the contract with Mr. Y. 5 Zagreb Municipal Court Judgment, P-1459/03 of 16 September 2003 (unpublished), Zagreb County Court Judgment, Gž-1323/04-2 of 10 October 2006 (unpublished) and Judgment of the Supreme Court of the Republic of Croatia, Rev 362/07-2 of 7 January 2009, published at On the reasoning of all three instances of Croatia s judiciary see L. Burazin, Antinomy between the General Principles of Law (The City Cemetery case), Dignitas The Slovenian Journal of Human Rights, No , 2010, pp

3 Thus, the only point in the dispute is whether, given the above described developments, it is the claimants who remain the holders of the right of use for two graves or whether this right was acquired by the defendant? 3. Legal Gaps As I have shown in my previous paper, Croatia s legal system does not provide an overall normative regulation of the disputed issue. 6 The legislator has regulated the issue of graves, but omitted to regulate certain other states of affairs that also seem legally relevant. One can thus speak of the existence of a normative gap in Croatia s legal system concerning the issue in dispute, i.e. concerning multiple assignments of the right to use a grave. Since there is no legal rule in Croatia s positive law system regulating the above described situation, i.e., since there is a legal gap with respect to the issue in dispute, both parties referred in their arguments to legal principles as the final substantiations of their views. The claimants referred to the principle nemo plus iuris ad alium transferre potest quam ipse habet (hereinafter: the nemo plus iuris principle) in order to substantiate their request that it be determined that they were the exclusive holders of the disputed right of use, while the defendant, in defence of her claim, referred to the principle of protection of legal transactions in so far as it related to the protection of the acquirer that acted in good faith (hereinafter: the bona fides principle). 7 Since, on the one hand, the existence of legal gaps is a phenomenon common to every legal system and since, on the other hand, judges, despite some objections that certain important legal principles (e.g., the principles of legality, legal certainty, and irretroactivity) might be violated, 8 are obliged to decide every issue in dispute (prohibition of declaring a non liquet, déni de justice), 9 legal orders necessarily provide certain methods for resolving the problem of legal gaps in concrete cases by way of their filling. Of the various gap-closing means 10 that are available to those who apply legal norms (judges and administration bodies), analogy is especially important in the case of visible gaps. 11 In general, analogy (or argumentum per analogiam, argumentum a simili ad simile) is a general principle of logic providing for the 6 See Burazin 2010, pp See the Zagreb Municipal Court Judgment, P-1459/03 of 16 September 2003 and the Zagreb County Court Judgment, Gž-1323/04-2 of 10 October See R. Guastini, Interpretare e argomentare, Dott. A. Giuffré Editore, Milano, 2011, pp See C. Perelman, Pravo, moral i filozofija, Nolit, Beograd, 1983, p. 129 and L. Recaséns Siches, Human Life, Society and Law: Fundamentals of the Philosophy of the Law, in L. Recaséns Siches et. al. (eds.), Latin-American Legal Philosophy, 20 th Century Legal Philosophy Series, Vol. III, Harvard University Press, 1948, pp E.g., customary law, power of the judge to create legal norms on his own, principle of the nature of a matter, general principle of freedom, legal practice, doctrine, morality, arg. a contrario. 11 See K. Larenz & C.-W. Canaris, Methodenlehre der Rechtswissenschaft, Springer, Berlin [etc.], 1995, p. 202 ff. and R. Guastini, L'interpretazione dei documenti normativi, Dott. A. Giuffré Editore, Milano, 2004, pp. 191 and

4 drawing of conclusions on the basis of similarity. 12 As a rule, legal theory differentiates between two types of analogies, statutory analogy (analogia legis) and legal analogy (analogia iuris). Statutory analogy refers to the application of an explicitly expressed positive legal norm 13 regulating case A to an essentially similar (analogous) case B for which no legal norm exists. Essential similarity between any two cases reveals itself both as similarity between their essential characteristics 14 and as identity of interests and aims (ratio legis) which the law should protect with respect to both cases. 15 However, in the City Cemetery case, the application of statutory analogy would at most provide a questionable solution since the choice of a legal norm regulating a case analogous to the multiple assignment of the right to use a grave would also depend on the previously taken view on the legal nature of the disputed right of use, which itself is a very contestable issue. 16 Therefore, when, in applying law, one encounters a gap in law and when statutory analogy does not provide a clear enough solution as seems to be the case in the City Cemetery case 17 the rules of the so-called legal analogy, i.e., on the use of legal principles, acquire special importance. 18 These principles, it is argued, can be of both the explicit and the implicit kind, i.e., 12 See N. Visković, Teorija države i prava, Birotehnika, Zagreb, 2006, p See B. Perić, Država i pravni sustav, Informator, Zagreb, 1994, pp. 225 and 226, Guastini 2004, pp , Larenz & Canaris 1995, p. 202, M. Pavčnik, Teorija prava, GV Založba, Ljubljana, 2007, pp. 510 and 511, Visković 2006, p. 262, N. Visković, Argumentacija i pravo, PF u Splitu, Split, 1997, pp. 66 and 67, E. Ottová, Teória práva, Heureka, Šamorín, 2006, p. 280, P. Koller, Theorie des Rechts, Böhlau, Wien-Köln-Weimar, 1997, p. 231, G. Tarello, Argumentacija tumačenja i sheme obrazlaganja u pridavanju značenja normativnim tekstovima, Zbornik za teoriju prava, vol. 4 Srpske akademije nauka i umetnosti, Beograd, 1990, pp and Recaséns Siches 1948, p Thus, for example, the right in respect of which protection is sought in case B (for which no legal norm exists) would be essentially similar to the right in case A (for which a legal norm exists), if the legal nature of both these rights (as an essential element) were the same (e.g., two real rights) or essentially the same (e.g., the right of ownership and the property component of copyright). Furthermore, the legal relationship in case B (for which no legal norm exists) would be essentially similar to the legal relationship in case A (for which a legal norm exists), if the legal position of subjects of these relationships (as an essential element) were essentially the same (e.g., the legal position of co-heirs with respect to the estate and the legal position of co-owners with respect to property). For the second example, see Ž. Harašić, Problem razgraničenja lakih slučajeva (easy cases) i teških slučajeva (hard cases), Zbornik Pravnog fakulteta u Zagrebu, Vol. 56, No. 1 (2006), Zagreb, pp For more examples of essential similarity between essential features of compared cases, see M. Pavčnik, Why Discuss Gaps in the Law, Ratio Juris, Vol. 9, No. 1 (1996), pp. 80 and See Perić 1994, pp. 225 and 226, Visković 2006, p. 262, Visković 1997, pp. 66 and 67, D. Vrban, Država i pravo, Golden marketing, Zagreb, 2003, pp. 464 and 465, Larenz & Canaris 1995, pp , F. Bydlinski, Grundzüge der juristichen Methodenlehre, WUV, Wien, 2005, pp. 63 and 64, Pavčnik 2007, pp. 510 and 511, Pavčnik 1996, pp. 80 and 81, and Koller 1997, pp. 231 and See Burazin 2010, p. 281, n See ibid., p See Perić 1994, p. 226, Guastini 2004, pp and Larenz & Canaris 1995, p However, e.g., Tarello refers to restraint with respect to the operative power of legal analogy by noting that in all the countries of continental Europe and irrespective of its being explicitly mentioned in some codes, it is used very rarely since huge differences have come to be disclosed not only in terms of the nature of the general principles but also in respect of their contents. Tarello 1990, pp

5 they can be either explicitly expressed in a normative text (explicit principles) or not explicitly formulated in any normative text but constructed by those who apply and interpret law (implicit principles). 19 In the City Cemetery case we deal with implicit legal principles. Both the purported nemo plus iuris principle and the purported bona fides principle, to which the parties refer in their arguments, are not explicitly expressed as general legal principles in any positive normative disposition of Croatia s law. But, if they are not stated in any pre-existing normative provision, how is it that judges know them and eventually apply them, at least when they encounter legal gaps? Well, such legal principles form a part of our common legal-talk and judges take them as implicit, latent, in the discourse on sources. 20 However, in order to make them more explicit, more apt to serve as a basis for grounding court decisions, judges first have to create them as general principles on an ad hoc basis. Their creation or, rather, their creative discovery takes the form of the so-called juridical construction procedure. When filling a gap in law by legal analogy, by way of applying implicit legal principles, the applier (interpreter) of law first has to turn to the legal system in its entirety 21 and try to find within it a set of legal rules (R 1, R 2, R 3,... R n ) which for different states of affairs (factual circumstances) envisage identical legal consequences (C). 22 In fact, the law-applier picks out a set of rules which he interprets as having the same ratio legis. 23 It is from this set of legal rules and on the basis of his conjecture about their common ratio legis that the law-applier proceeds to construct or create an implicit legal principle. 24 Since all this depends on the interpretation of 19 Guastini 2011, p However, one may question whether explicit principles can properly be conceived as pertaining to legal analogy. Since they constitute explicitly expressed positive legal norms, one might argue that they can better be understood as norms susceptible to be used in the course of statutory analogy application. Of course, only after they have been concretized into implicit legal rules with a closed antecedent and precise legal consequences to be applied to the case at hand. It might thus be claimed that the application of legal analogy amounts in fact to the use of implicit legal principles for closing legal gaps. Or, one might give a different interpretation to this. If the application of legal principles always requires that they be concretized, i.e. that implicit legal rules be created, one might then argue that the proper distinction between statutory and legal analogy is that between the application of explicit (positive) legal rules and the application of implicit (non-positive) legal rules. However, since, after all, the application of both explicit and implicit legal rules should here proceed within the scope of analogical reasoning, it would be hard to justify that, where implicit legal rules are applied, there is any analogical reasoning at all. Finally, this admits of a third interpretation as well. According to this interpretation, the only proper kind of analogy is statutory analogy for it does rest on analogical reasoning, legal analogy being simply a different argument, i.e. an argument from principles, not necessarily entailing any type of analogical reasoning. 20 Ibid. 21 See Perić 1994, p According to Tarello, the method for deriving the general principles of law from the totality of all the norms of a certain positive legal system has its roots in Savigny's understanding of the law as an organic expression of the Volksgeist. Tarello further points to the belief that the general principles of law are to be deduced from the natural law (stemming from the learning of the natural law school) and the belief that the general principles of law are to be deduced from the laws recognized by the so-called civilized nations (stemming from the learning of 19 th century legal liberalism). See Tarello 1990, p See Larenz & Canaris 1995, p. 204 and Bydlinski 2005, pp Guastini 2011, p Ibid. 5

6 the law-applier and his guess about the relevant ratio legis, one might give a sort of cautionary note emphasizing the discretionary character of the juridical construction procedure and its dependence on evaluation. 25 However, there are at least two things that lessen our concerns. Firstly, in most cases the legal principles thus created are already well-known, so what the law-applier in fact does is merely creatively discovers implicit principles. Secondly, what the law-applier derives implicit principles from are positive legal rules of his legal system. In this way, the law-applier is still limited, no matter how indirectly, by the principle of legality in the sense that he has to show how the implicit principle he created, and which he purports to apply to a concrete case, follows from the existing positive system of rules. There is no doubt that, as legal principles, both the nemo plus iuris principle and the bona fides principle represent important means of legal argumentation. Thus, for example, Struck's catalogue of topoi describes them as relevant standard arguments, 26 of which the majority constitute, according to Visković, well-known legal principles or supreme axiological rules. 27 Neither, however, constitutes explicit general legal principles of Croatia s legal system. Therefore, they may only be conceived as implicit legal principles, created within the juridical construction procedure. Both the nemo plus iuris principle and the bona fides principle can be drawn, in conformity with the rules on the application of so-called legal analogy, from a whole set of legal rules that jointly belong to the one and the same (in this case the Croatian) legal system, which legal rules prescribe identical legal consequences and have the same presumed ratio legis. The nemo plus iuris principle may thus be drawn from, e.g., rules on the acquisition of rights (right of ownership and other real rights, rights in personam, right of inheritance, etc.), rules on agency, and rules on delegation of jurisdiction. All these rules, according to some interpretation of them, express the same ratio legis of protecting the right holders and their legal rights. Likewise, the bona fides principle may be drawn from, e.g., rules on the acquisition of an immovable or movable property from a non-owner, rules on acquisition from a pseudoheir, rules on the bona fide acquirer of a negotiable instrument, rules on the offer and acceptance by an unauthorized person, and rules on the non-confiscation of a pecuniary gain acquired by means of a criminal deed from a third party that acquired it in good faith. Again, all the rules providing the basis for the construction of the bona fides principle, on some interpretation of them, share an identical ratio legis, that of protecting the security of legal transactions and legal certainty. Thus, what we now have as a result of the first step in the application of legal analogy are two implicit legal principles. 25 Ibid., pp See G. Struck, Katalog toposa, Pravni vjesnik: tromjesečni glasnik za pravne i društveno-humanističke znanosti Pravnog fakulteta u Osijeku, Vol. 3, No. 3-4, 1987, pp. 406 and Visković 1997, p

7 As legal principles, both the nemo plus iuris principle and the bona fides principle provide an axiological justification to certain rules of a given system. Also, as legal principles, they both have the same teleological structure. Both principles present a goal worth achieving (protection of the right-holders legal rights or protection of the security of legal transactions and of legal certainty), rather than prescribe how one, in some precisely described circumstances, ought to behave. It is claimed that, because of the structure they have, principles are in many ways indeterminate, at least more indeterminate than legal rules. In a sense, they are indeterminate because they have an open antecedent. Their hypothesis does not consist in exhaustively regulating states of affairs or factual conditions as triggers of relevant legal consequences. 28 Furthermore, in contrast to legal rules, principles do not regulate precisely the legal consequences which should follow in the presence of a certain state of affairs. Therefore, while, in principle, legal rules can be applied directly to a given state of affairs, legal principles, in order that they be applied, first have to be concretized, i.e. endowed with a closed antecedent and precise legal consequences. Finally, since one can infer about the existence of a normative conflict only by comparing the antecedents and legal consequences of different norms, normative conflicts between legal principles can emerge only after they have been concretized. Therefore, if one wants to apply implicit principles and fill a legal gap one has encountered, one should proceed with the concretization procedure. The concretization procedure consists in the creation of a new rule on the basis of a certain legal principle. 29 Since the new rule, up until the moment of its formulation by the law-applier, has not been explicitly regulated by a normative disposition, it may be called an implicit legal rule, elaborated and formulated by the interpreter. 30 Thus, returning to the City Cemetery case, one now has to concretize the two implicit principles (nemo plus iuris and bona fides) by deriving from them implicit legal rules, with a closed antecedent and precise legal consequences, which it would then be possible to apply to the issue in dispute. Consequently, from the nemo plus iuris principle, it is possible to formulate legal rule R 1 according to which No person may assign to another the right of use of a grave unless he is its lawful holder. Of course, the defendant could not have acquired the right of use of graves from person Y on the basis of such a legal rule as Y was not the lawful holder of the disputed right of use. It would only be possible, on the basis of such a legal rule, to decide that the claimants are the holders of the disputed right of use since, in the case of their acquisition, the precondition of the predecessor's right of use is met. On the other hand, from the bona fides principle it is possible to formulate legal rule R 2 according to which A person acquires the right of use of a grave if, acting with trust in the grave register, he acquired it in good faith under the assignment contract concluded with a person who was registered as, but was not, its lawful holder. The defendant could, of course, have acquired, on the basis of such 28 Guastini 2011, p Ibid., pp Ibid., p

8 a legal rule, the disputed right of use despite Y not being its lawful holder since when the defendent entered into the assignment contract with person Y, she acted with trust in the truthfulness of the contents of the grave register, i.e., she acted in good faith. In this case, the claimants' request that it be determined that they, and not the defendant, are the exclusive holders of the disputed right of use should be refused. As follows from the above, the application of so-called legal analogy at this stage of the City Cemetery case results in two implicit legal principles on the basis of which two implicit legal rules are created, the normative qualifications of which produce two different solutions to the legal issue in dispute. Therefore, if we decide to resolve the disputed issue by applying the socalled legal analogy, i.e., by using the two implicit legal principles, it seems that we first have to solve another problem relating to legal argumentation: the existence of antinomy. 4. Antinomies between Legal Principles and the Use of the Speciality Criterion In legal theory, the term antinomy is understood as contradiction (inconsistency, 31 logical mismatch of contents, 32 incompatibility, 33 conflict 34 ) between two or more legal rules (or two or more legal principles) relating to one and the same state of affairs (i.e., factual conditions). 35 According to Ross, antinomies (inconsistencies) between two legal norms can take three different forms: 1) total-total antinomy or absolute antinomy (i.e., where neither of the norms can be applied under any circumstances without conflicting with the other ); 2) total-partial antinomy or antinomy between the general and the particular rule (i.e., where one of the two norms cannot be applied under any circumstances without coming into conflict with the other, whereas the other norm has in addition a further field of application in which it does not conflict with the first one ); and 3) partial-partial antinomy or the overlapping of rules (i.e., where each of the two norms has a field of application in which it conflicts with the other, but also a further field of application in which no conflict arises ). 36 Section 2 showed that legal principles can somehow come into conflict. Conflict between principles seems to emerge only after their concretization and the creation of implicit legal rules. Thus, it is sometimes claimed that this conflict is only conflict in concreto, signifying, 31 See A. Ross, On Law and Justice, Stevens & Sons Limited, London, 1958, pp See Vrban 2003, p See N. Bobbio, Eseji iz teorije prava, Logos, Split, 1988, pp , Guastini 2004, pp , Visković 1997, pp , M. Pavčnik, Teorija prava, GV Založba, Ljubljana, 2011, p. 394 and Tarello 1990, p See Tarello 1990, p See Perić 1994, pp According to Perelman, contradiction may exist only between a true and a false statement, whereas in the case of legal norms it is more appropriate to speak of the existence of discord between guidelines relating to the same subject matter. Perelman 1983, p Ross 1958, pp Cf. Guastini 2004, pp

9 in fact, a conflict between legal rules, as more concrete legal norms, rather than a conflict between legal principles, as more abstract legal norms. However, it is also claimed that conflict between principles can occur only as the partial-partial one, in which parts of the state of affairs that is regulated by principles overlap only in some cases and that this, therefore, calls for balancing as the appropriate way for resolving the conflict. 37 A justification for these latter claims can be found only if principles are regarded as abstract and indeterminate legal norms that have a teleological structure and open antecedent and lack precisely defined legal consequences that are needed for their direct application in a concrete case. Thus, it may seem that there is a tension between the claim concerning the level at which principles come into conflict (i.e., the level of their concretization or, better still, the level of implicit legal rules) and claims regarding the type of conflict (i.e., partial-partial antinomy) and the method for solving the conflict (i.e., balancing). Namely, if a conflict cannot arise directly between legal principles but only between implicit legal rules, i.e., the rules inferred from these principles, then the claim concerning the type of conflict and the appropriate method for its resolution can only be advanced on the basis of an account of implicit legal rules and not on the basis of an account of legal principles. One may argue that the City Cemetery case deals with the existence of antinomy between two implicit legal principles the nemo plus iuris and the bona fides principles. However, antinomy between implicit principles is not antinomy at the principles normative level. 38 Principles are abstract legal norms, setting forth the goals to be achieved without thereby directly describing how one should behave. The same goes for the two principles referred to in the analysed case. The nemo plus iuris principle pursues the goal of protecting the right-holders and their legal rights, while the bona fides principle promotes the protection of the security of legal transactions and legal certainty. It is hard to see how these two legal principles can come into conflict at the abstract normative level at which their goals are set. 39 And it is this very insight, I think, that seems to give one a reason for the claim that only partialpartial antinomies are possible between principles. But this insight, as has been explained, can only rest on the false assumption that there can be a proper antinomy between legal principles at their abstract normative level. However, since principles can only be realized through being applied in concrete cases, so also they come into conflict only in the course of their application, or in concreto. 40 So what does come into conflict are not legal principles as such, but rather their case concretizations in the form of legal rules interpretatively constructed from principles, 37 For such viewpoint regarding constitutional principles see Guastini 2011, pp , As a rule, legal principles come into conflict only when applied to a concrete case (in concreto). See Guastini 2004, p Although, as Ávila observes, in some cases there even seems to occur an abstract conflict between principles, however partial it might be. See Ávila 2007, pp and For the two levels of validity of legal principles (the abstract and the concrete), see M. Reßing, Prinzipien als Normen mit zwei Geltungsebenen, ARSP, Vol. 95, No. 1, 2009, pp

10 i.e., implicit legal rules. It may thus be said that a conflict between principles eventually amounts to a conflict between implicit legal rules, which is what we see in the City Cemetery case. The case concerns the existence of antinomy not directly between two abstract legal principles, but between legal rules that have been constructed from these principles with respect to the circumstances of the analysed case. 41 Nevertheless, since implicit legal rules are concretizations of legal principles from which they have been constructed, their existence is dependent on these same principles. Therefore, where a conflict between such legal rules occurs, it would, to some extent, also be justified to speak of indirect antinomy between legal principles or, more precisely, of antinomy between concretized legal principles. Now, if the above reasoning is sound, and antinomies between principles really amount to antinomies between implicit legal rules, there is no longer any reason why possible antinomies between concretized legal principles should be limited only to those of the partialpartial type. Legal rules may come into conflict in the total-total way and, indeed, they very often do in the total-partial way. Moreover, if eventually all comes down to the level of legal rules, why should one insist on balancing as the only suitable method for solving antinomies between principles? In view of the fact that antinomies in general, and thus also antinomies between concretized legal principles, lead to negative consequences, such as the weakening of a legal system's coherence or the undermining of the legal certainty of addressees of legal norms, legal orders most frequently adopt three well-known juridical criteria for solving them: the criterion of time (lex posterior derogat legi priori), the criterion of hierarchy (lex superior derogat legi inferiori) and the criterion of speciality (lex specialis derogat legi generali). 42 However, as Ross correctly notes, the criteria of time, hierarchy and speciality are not axioms, but principles of relative weight, co-operating in the interpretation with other considerations in particular with an evaluation concerning which way of achieving harmony will best agree 43 with common sense, popular legal consciousness, or presumed social objectives. Of course, in addition to these juridical criteria, in the case of a special type of antinomy antinomy between legal principles regular reference is also made to the so-called dimension of the weight or importance of a principle, which dimension should be an important factor in giving precedence in law-application to one of the opposing principles when solving collisions 41 On the circumstances of a case as a precondition for the giving of precedence to one legal principle over another in the case of a collision of principles, see R. Alexy, On the Structure of Legal Principles, Ratio Juris, Vol. 13, No. 3, 2000, pp See Perić 1994, pp , Guastini 2004, pp and Bobbio 1988, p Ross 1958, p

11 between legal principles in a concrete case. 44 However, since it has been shown that antinomies between legal principles eventually amount to antinomies between implicit legal rules, it is justified to test whether any of the classical juridical criteria for solving such antinomies can also be used in the case of antinomies between concretized legal principles. Thus, one has to examine whether the criterion of time, the criterion of hierarchy or the criterion of speciality can take the place of the weighing or balancing of colliding principles according to their supposed dimension of weight. According to the criterion of time, which is primarily based on the view that he who comes later knows more than he who comes earlier, 45 the more recent legal norm stands in preference to the earlier one with respect to law-application. In the case of ius scriptum, it is not too hard to establish which legal norm is more recent and which earlier. However, it is much harder to determine the temporal order of the emergence of legal norms in the case of customary law norms, 46 and even more so in the case of the application of legal principles. Due not only to the difficulties encountered in determining which of the two conflicting legal principles is earlier and which more recent, but also due to their specific nature 47 which is defined, among other things, by the very notion of their longevity, 48 the criterion of time does not seem appropriate for resolving antinomies between legal principles. On the basis of the criterion of hierarchy, according to which the higher-ranking authority knows more than the lower-ranking authority, a higher legal norm has priority with respect to law-application over a lower one. In the majority of cases the hierarchy of legal sources is clearly established so in most cases the use of the hierarchy argument is a relatively simple operation. However, when attempting to establish the hierarchical relationship between 49 legal principles, the decision which principle is higher-ranking and which lower-ranking, would be accompanied by great uncertainty in view of the nature of legal principles and the different views on their origins (e.g., natural law, laws recognized by the so-called civilized nations, the totality of provisions of a legal system, morality, justice, etc.). Even if, in the case of explicit legal principles, one can identify at least some form of hierarchical order (e.g., constitutional principles, legislative principles), in the case of implicit legal principles, constructed by 44 See Dworkin 1977, pp , Alexy 2000, pp , Guastini 2004, pp. 218, 219 and 253, M. Atienza, Argumentiranje in ustava, Revus European Constitutionality Review, No. 9, 2009, pp and M. Novak, Poglavlja iz filozofije in teorije prava, Evropska pravna fakulteta, Nova Gorica, 2008, pp Bobbio 1988, p See ibid., p On the basic characteristics of legal principles, see Hart 1997, pp , Dworkin 1977, pp , Alexy 2000, pp , Reßing 2009, pp and Novak 2008, pp Perić 1994, p On attempts at introducing a hierarchical order between legal principles, see ibid., pp and Guastini 2011, pp

12 interpreters, this seems hardly imaginable. Therefore, as is the case with the criterion of time, the criterion of hierarchy seems inadequate for resolving antinomies between legal principles. Finally, according to the criterion of speciality, which is based on the principle of justice (in the conventional sense of the word - suum cuique tribuere) and the notion that all persons belonging to the same category should be treated equally, 50 a legal norm regulating specifically a certain state of affairs has priority with respect to law-application over a legal norm that regulates this same state of affairs in a general manner. Thus, in order for the speciality criterion to be applied, it is necessary to determine the contents of legal norms that stand in contradiction to each other. Therefore, precisely because the use of the speciality criterion entails the determination of the contents as opposed to the determination of the moments of emergence or of the hierarchical order of mutually contradictory normative dispositions, the speciality criterion seems an acceptable means for resolving at least some antinomies, namely, the total-partial antinomies between concretized legal principles, as opposed to the other two criteria. 51 In other words, it is much easier to establish the contents of legal principles, as they represent the sediment of legal wisdom through the centuries and a deep sediment of legal experience and skill, legal philosophy and logic, 52 than the moment of emergence or the hierarchical rank of any individual legal principle. 5. Testing the Speciality Criterion on the City Cemetery Case As it follows from the analysis of the City Cemetery case, the application of legal analogy in order to fill a legal gap in Croatia s legal system with respect to the issue in question has resulted in two implicit legal principles on the basis of which two implicit legal rules have been created, the normative qualifications of which have produced two different solutions to the legal issue in dispute. Such a situation represents what is called an indirect antinomy between legal principles or an antinomy between concretized legal principles. Since it has been argued that at least some antinomies between legal principles, namely the total-partial antinomy, 50 See Bobbio 1988, pp. 128, 130 and The opposite stance is taken by Guastini who proceeds from the claim that it is mostly the so-called partialpartial antinomy which occurs between legal principles. In fact, Guastini refers to constitutional principles, but it seems that his claim is a more general one, relating to legal principles as such. Hence, according to Guastini, the criterion of speciality is just as well not applicable to the solving of antinomies between legal principles since in the case of the partial-partial antinomy there is no genus-species relationship between classes of factual states regulated by two principles of law. Of course, the argument is sound in so far as the claim about the exclusive possibility of partial-partial antinomies between legal principles is true. See Guastini 2011, p And even when it seems that Guastini allows for the possibility of the application of some sort of lex specialis criterion in cases of (partial-partial) conflicts between principles, this, it seems, amounts to no more than his conception of balancing. See Guastini 2011, pp Perić 1994, p

13 could be resolved by applying the criterion of speciality, it is first necessary to determine whether in the analysed case one is dealing with this type of antinomy. For this purpose, one should first determine the contents of the implicit legal rules constructed from the principles in question and thereafter establish whether the content of one of these two implicit legal rules represents, with regard to the conditions of the case, a general legal regulation and that of the other a specific legal regulation. Rule R 1, constructed from the nemo plus iuris principle, states the following: No person may assign to another a right of use of a grave unless he is its lawful holder. R 1 amounts to a regulation of each and every acquisition of the right of use of a grave, laying down a precondition for such acquisition in the form of the existence of the predecessor's right. R 2, on the other hand, was constructed from the bona fides principle with the following normative disposition: A person acquires the right of use of a grave if, acting with trust in the grave register, he acquired it in good faith under the assignment contract concluded with a person who was registered as, but was not, its lawful holder. The normative content of R 2 amounts to a regulation of the acquisition of the right of use of a grave in good faith, laying down a precondition for such acquisition in the form of the existence of acting in good faith by the acquirer of the right. It follows therefrom that, with regard to the circumstances of the analysed case, the normative dispositions of R 1 and R 2 are not equal in terms of their substantive scope. While R 1 refers to the general category of the acquisition of the rights of use of graves, R 2 concerns one particular category of the acquisition of the rights of use of graves in good faith. Consequently, one may conclude that under the circumstances of the analysed case the nemo plus iuris principle, in the form of implicit rule R 1, is represented by a general interpretatively constructed normative disposition, while the bona fides principle, in the form of implicit rule R 2, is represented by a special interpretatively constructed normative disposition. From this it follows that Ross criterion for the existence of total-partial antinomies has been met, since the latter normative disposition cannot, under any circumstances, be applied without coming into conflict with the former, whereas the former has a further field of application in which it does not conflict with the latter. One may, therefore, argue that this situation represents a totalpartial antinomy or an antinomy between general and particular rules. Since the antinomy in the analysed case is of the total-partial type or one between a general rule and a rule-exception, one could, according to the view stated in this paper, apply the criterion of speciality in order to decide which of the two indirectly colliding implicit legal principles should be given precedence in the issue in dispute. According to the speciality criterion, a legal norm specifically regulating a certain state of affairs has priority with respect to law-application over a legal norm which regulates this same state of affairs in a general manner. As has been shown, the nemo plus iuris principle, as applied in the case in question, has, with reference to the general category of acquisition of the rights of use of graves, a 13

14 broader substantive scope, while the bona fides principle, as applied in the concrete case, has, with reference to only one particular category of rights acquisition, i.e., the acquisition of the rights of use of graves in good faith, a narrower substantive scope. Therefore, the application, in the City Cemetery case, of the speciality criterion would give precedence to the bona fides principle, since the said principle is in its normative substantive scope more specific than the nemo plus iuris principle. Or, more precisely, it would give precedence to the implicit legal rule inferred from the bona fides principle, since the said legal rule regulates a legal relationship that is more specific than the one regulated by the legal rule inferred from the nemo plus iuris principle. 6. Conclusion Implicit legal principles can in a sense come into conflict. However, since principles are abstract legal norms, stating goals to be achieved and not directly describing due behaviour, legal principles can hardly come into conflict at the normative level or in abstracto. Since principles can only be realized through their application in concrete cases, they can only come into conflict in the course of their application or in concreto. When applied in a concrete case, principles are concretized by way of deriving from them implicit legal rules which it would be possible to apply to the case in question. Therefore, the conflict in question is, as a rule, a conflict between implicit legal rules constructed from implicit legal principles or a conflict between concretized legal principles. Since a conflict between concretized principles is, in effect, a conflict between legal rules, it has been argued that not only partial-partial, but also total-partial antinomies between concretized implicit legal principles exist and that at least one of the classical juridical criteria for solving conflicts between rules might be suitable for solving conflicts between implicit legal principles. As has been shown, of the three juridical criteria (lex posterior, lex superior, lex specialis), only the criterion of speciality seems an acceptable means for resolving antinomies between implicit legal principles. Since the criterion of speciality concerns the determination of the speciality-generality relationship between conflicting legal norms, it has been concluded that this criterion could be used as a means for resolving totalpartial antinomies between implicit legal principles. Keywords: legal principles, implicit principles, antinomy, normative conflict, criterion of speciality, balancing, legal gaps 14