The notion of the ‘principles of law’ in the light of the idea of ‘essentially contested concepts’

Abstract

Despite many studies on the theoretical properties of the ‘principles of law’ none of the theories proposed has been recognised as a leading or more accurate one than others. The paper is an attempt to examine the reasons for this, by examining the notion of the ‘principles of law’ in the light of the idea of ‘essentially contested concepts’ (ECC), introduced by Walter B. Gallie. This concept is little known in Polish legal scholarship. Depending on the views regarding its nature, the ‘essentially contested concept’ may be seen as an analytic framework pointing at its attributes and the attributes of a dispute about it, or as an ontological ‘explanatory hypothesis’ attributing to certain concepts a natural impossibility of reaching an agreement as to the proper use of these concepts. Regardless of the adopted view, the analysis of the ‘principles of law’ as an essentially contested concept provides a possibility to cast a glance at the discussion concerning their theoretical nature from an ‘external’, or independent point of view. This in turn allows for a thesis that the argumentation for a specific way of use of the concept of ‘principles’ should, to a greater extent than it is done by statements concerning the true nature of ‘principles’, which are the conventional by nature, advocate the suitability and utility of the theories proposed.