CONSTITUTIONAL PRINCIPLES IN PRIVATE LAW JUDGMENTS - IS IT SOMETIMES A FASHION?

Abstract

The relationship between reasoning through rules and reasoning through principles is generally thought of as one of either complementarity or conflict. When thought of as a complementarity relation, the idea is that principles are there for when judges have no clear-cut solution to their cases. This occurs in cases where there is no rule for the case, the rule is vague or there are at least two rules that seem to be applicable to the same case. When thought of as a conflict relation, on the other hand, the thought is that principles serve to declare rules invalid. This occurs when judges believe that the rule that unequivocally governs the case is unfair. They utilize a principle for both explaining in which sense it is that the rule is unfair and also for developing an appropriate solution. This work examines three high court decisions of the Argentinian legal system to show that judges may use principles neither to complement the lack of clearly applicable rules nor to declare rules invalid but to restate what rules already say. In other words, I identify that in certain decisions, judges, after having decided in accordance with what a rule says, they find themselves in the need to reaffirm their decision with reasoning through principles. In itself, the finding is already interesting. Still, I believe that there is a value added in the reading of the three selected cases, for, as I argue, they exhibit three important aspects of the phenomenon scholars have dubbed “constitutionalization of              private law”.