BARASIN, Luka Antinomies between implicit legal principles

Prévia do material em texto

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 hypothetical-
conditional character of rules and principles, the final mode of their application, and the 
normative conflict criterion.3
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, 
which can be solved with weighing that assigns each of them a dimension of weight.
 From the normative conflict aspect, it is claimed that 
4
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 so-
called 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. 23-27. 
2 See, e.g., H. L. A. Hart, The Concept of Law, Oxford University Press, New York, 1997, pp. 259-263. 
3 For an overview of such distinction criteria see H. Avila, Theory of Legal Principles, Springer, Dordrecht, 2007, pp. 
11-29 
4 Ibid., p. 11. 
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).5
 
 
2. 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 2002. 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 http://sudskapraksa.vsrh.hr/supra. 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. 45-46, 2010, pp. 276-279. 
http://sudskapraksa.vsrh.hr/supra�
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 means10 that are 
available to those who apply legal norms (judges and administration bodies), analogy is 
especially important in the case of ‘visible’ gaps.11
 
6 See Burazin 2010, pp. 280-281. 
 In general, analogy (or argumentum per 
analogiam, argumentum a simili ad simile) is a general principle of logic providingfor the 
7 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 2006. 
8 See R. Guastini, Interpretare e argomentare, Dott. A. Giuffré Editore, Milano, 2011, pp. 140-143. 
9 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, 20th Century Legal Philosophy Series, Vol. III, Harvard University Press, 1948, pp. 194-196. 
10 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 192. 
4 
 
drawing of conclusions on the basis of similarity.12
Statutory analogy refers to the application of an explicitly expressed positive legal norm 
regulating case A to an essentially similar (analogous) case B for which no legal norm exists.
 As a rule, legal theory differentiates between 
two types of analogies, statutory analogy (analogia legis) and legal analogy (analogia iuris). 
13 
Essential similarity between any two cases reveals itself both as similarity between their 
essential characteristics14 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
 
12 See N. Visković, Teorija države i prava, Birotehnika, Zagreb, 2006, p. 262. 
 These principles, it is argued, can be of both the explicit and the implicit kind, i.e., 
13 See B. Perić, Država i pravni sustav, Informator, Zagreb, 1994, pp. 225 and 226, Guastini 2004, pp. 154-157, 
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. 246-249 and Recaséns Siches 1948, p. 197. 
14 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. 102-105. 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 81. 
15 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. 202-204, 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 232. 
16 See Burazin 2010, p. 281, n. 21. 
17 See ibid., p. 282. 
18 See Perić 1994, p. 226, Guastini 2004, pp. 191-192 and Larenz & Canaris 1995, p. 206. 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. 270-271. 
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 entirety21 and try to find within it a 
set of legal rules (R1, R2, R3, ... Rn) 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
 
19 Guastini 2011, p. 185. 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 oflegal 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. 
 Since all this depends on the interpretation of 
20 Ibid. 
21 See Perić 1994, p. 226. 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 19th century legal liberalism). See Tarello 1990, p. 270. 
22 See Larenz & Canaris 1995, p. 204 and Bydlinski 2005, pp. 67-68. 
23 Guastini 2011, p. 186. 
24 Ibid. 
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
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,”
 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. 
26 of which the majority 
constitute, according to Visković, “well-known legal principles or supreme axiological rules”.27
 
25 Ibid., pp. 187-188. 
 
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 pseudo-
heir, 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. 
26 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 408. 
27 Visković 1997, p. 57. 
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
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.
 
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. 
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
 
28 Guastini 2011, p. 177. 
 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 R1 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 ofuse 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 R2 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 
29 Ibid., pp. 201-203. 
30 Ibid., p. 193. 
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 so-
called 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 conflict34) 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. 128-132. 
32 See Vrban 2003, p. 466. 
33 See N. Bobbio, Eseji iz teorije prava, Logos, Split, 1988, pp. 124-125, Guastini 2004, pp. 243-244, Visković 1997, 
pp. 70-71, M. Pavčnik, Teorija prava, GV Založba, Ljubljana, 2011, p. 394 and Tarello 1990, p. 253. 
34 See Tarello 1990, p. 253. 
35 See Perić 1994, pp. 190-191. 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. 116. 
36 Ross 1958, pp. 128-129. Cf. Guastini 2004, pp. 245-246. 
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
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.
 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. 
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 partial-
partial 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
 
37 For such viewpoint regarding constitutional principles see Guastini 2011, pp. 125-126, 203-205. 
 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, 
38 As a rule, legal principles come into conflict only when applied to a concrete case (in concreto). See Guastini 
2004, p. 218. 
39 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. 27-28 and 31. 
40 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. 46-48. 
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
Now, if the above reasoning is sound, andantinomies 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 partial-
partial 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? 
 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. 
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
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 
with common sense, popular legal consciousness, or presumed social objectives.
 However, as Ross 
correctly notes, the criteria of time, hierarchy and speciality 
43
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. 296-297. 
42 See Perić 1994, pp. 190-192, Guastini 2004, pp. 249-251 and Bobbio 1988, p. 125. 
43 Ross 1958, p. 134. 
11 
 
between legal principles in a concrete case.44
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,”
 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. 
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 nature47 which is 
defined, among other things, by the very notion of their longevity,48
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 
legal principles,
 the criterion of time does 
not seem appropriate for resolving antinomies between legal principles. 
49
 
44 See Dworkin 1977, pp. 26-27, Alexy 2000, pp. 296-297, Guastini 2004, pp. 218, 219 and 253, M. Atienza, 
‘Argumentiranje in ustava’, Revus – European Constitutionality Review, No. 9, 2009, pp. 114-115 and M. Novak, 
Poglavlja iz filozofije in teorije prava, Evropska pravna fakulteta, Nova Gorica, 2008, pp. 299 - 323. 
 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 
45 Bobbio 1988, p. 128. 
46 See ibid., p. 125. 
47 On the basic characteristics of legal principles, see Hart 1997, pp. 260-263, Dworkin 1977, pp. 22-28, Alexy 2000, 
pp. 299-304, Reßing 2009, pp. 28-48 and Novak 2008, pp. 327 - 347. 
48 Perić 1994, p. 181. 
49 On attempts at introducing a hierarchical order between legal principles, see ibid., pp. 181-182 and Guastini 
2011, pp. 182-185. 
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 beencreated, 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 131. 
51 The opposite stance is taken by Guastini who proceeds from the claim that it is mostly the so-called partial-
partial 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. 205. 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. 124-125. 
52 Perić 1994, p. 181. 
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 R1, 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’. R1 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. R2, 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 R2 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 R1 and R2 are not equal in terms of their substantive scope. 
While R1 refers to the general category of the ‘acquisition of the rights of use of graves’, R2 
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 R1, is represented by a general interpretatively 
constructed normative disposition, while the bona fides principle, in the form of implicit rule R2, 
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 ‘total-
partial’ 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 
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 ‘total-
partial’ antinomies between implicit legal principles. 
 
Keywords: legal principles, implicit principles, antinomy, normative conflict, criterion of 
speciality, balancing, legal gaps