Principialism and legalism: a normative approach

Abstract

This paper questions the descriptive nature of principialist theories such as postpositivism or neoconstitutionalism and also of legalistic theories and it advocates an openly normative reading of their theses. For the emergence of principles or the constitutionalization of legal systems are not theoretically independent objective facts, but the result of the spread among the legal community of theories about the way in which law should be settled or the way in which its rules should be applied. Hence the debate between principialists and legalists is analyzed, seeking fundamentally to highlight their respective positions regarding the type of government that operates when legal norms reproduce the features according to which principles and rules have been defined, so enabling an assessment of the desirability of these models of government and of the changes in the configuration of legal systems that imply their principialization or rulelization.