Legal Principles and Legislative Instrumentalism

Instrumentalist legislation usually underestimates the importance of legal principles in modern law. Legal principles are the normative core of a value oriented conception of law. They function as essential criteria of evaluation for lawmaking by the legislator and the executive. In fact, legislator, administration and judiciary, all active in framing the legal system, are bound by general legal principles. Therefore, if the instrumentalist legislator evidently fails to implement these fundamental legal principles, judges may be obliged to review the law for compatibility with these principles. Of course, the judiciary has to leave the - democratically legitimised - legislature a margin of appreciation