Jusletter IT

The basic characteristic of legal principles is that they are value measures directing the definition of legal rules as to their contents, the understanding of the rules, and the manner of their application. The distinction between legal principles and legal rules is a relative one. Always such definite major and minor premises are to be formed that the case (the minor premise) can be subsumed under the rule (the major premise) and a conclusion, which includes the decision, can be drawn. This applies to legal principles that are operationalised by legal rules as well as to statutory forms of legal rules, which are often open as to their meaning and/or contain definitions (e.g. in the case of basic rights) that comprise elements of principles. The operationalisation of legal principles is the ratio decidendi that the court has to achieve in order to be able to decide in a concrete case. Legal principles live through the rules that are the reasons for the decisions in a concrete case. New cases can be solved by a new operationalisation of legal principles or by an analogous application of precedents if the new cases are, in their essential elements, similar to cases that have already been decided.