On «General principles»: legal-philosophical considerations based on the Public Procurement Code

Abstract

The contribution examines the General Principles of the Code from a theoretical standpoint. The first section analyses key principles set forth in Articles 1-4 of the Code, with a focus on their syntactic and structural coherence. The second section addresses renown issues in the application and reasoning based on principles: starting with technical questions related to formulations and statements, it progresses to the roles these principles play in legal reasoning, culminating in their impact on the Rule of Law. The analysis primarily explores the complex interconnections between the principles of the delegating law and those articulated within the Code, emphasizing the implicit dimension of principles and the role of legisprudence in elucidating the binding nature of legislative principles with respect to legislative intent. Following this, the analysis shifts to examine the broad applicability of the principles codified in Articles 1-11, alongside the scope of “External Reference” in Article 12. It further assesses the principle of outcomes and the axiological hierarchies in relation to other principles—chiefly legality, transparency, and competition, as well as good administration, efficiency, effectiveness, and economy, along with principles that reflect community interests and align with the objectives of the European Union. The contribution underscores the instrumental rationality underlying these principles and the broader Codification. It clarifies that the principle of outcomes (cf. Article 1, para. 4) is defeasible—that is, open to exceptions that necessitate case-specific determinations. Additionally, the study emphasizes that the General Principles operate on two traditional fronts: the preventive-repressive function and the rewarding-promotional function to uphold legal compliance. The principle of trust is similarly explored, including its symbolic-expressive significance and the conceptualization of the legal order it reflects. The study recalls the ethical and anthropological orientation embedded in the ideal of a legal system grounded in mutual trust, encompassing public institutions among its stakeholders. Moreover, Article 4 is analyzed as a meta-principle guiding both the interpretation and application of the Code’s provisions. This comprehensive analysis highlights how Codification articulates two significant, cross-cutting dimensions of contemporary law: promotionality and particularism. In the second section, the contribution addresses a critical issue in contemporary principles theory—how to reconcile the inherent indeterminacy of principles with the expectation of correctness they are assumed to uphold. For analytical clarity, it is proposed that “(general) principle” denotes a norm that (i) serves as a comparatively superior reason, though not in absolute terms, but rather always ceteris paribus, integrating values that are in some respect self-evident and reinforcing acceptance; and (ii) supports a multiplicity of ancillary uses and functions on a pragmatic level. Based on this framework, the study reflects on how principles transition into concrete cases and the justifiability and verifiability of the correct (or justified) (non-)application. The study observes that reconciling the Rule of Law—with its corollaries of separation of powers and democratic representation—and the inevitability of discretion can be achieved by adhering to methodological guidelines such as neutrality and interpretative charity. The latter is viewed as an expression of the interconnected principles of universalizability and trust. Neutrality is not understood as the absence of values or evaluations; rather, intellectual and moral honesty demands that the choices inherent in the legal method be made explicit. The analysis offers a pragmatic explanation for why reasoning in terms of a “right answer” is unavoidable, and that this bolsters the significance of argumentation and justification. The burden of justification should be stronger and more stringent as the certainty that the answer provided is indeed the most correct decreases. It is emphasized that legal practice relies upon—and requires from participants—two seemingly contradictory attitudes: a moderate legalism, or the expectation of obtaining justice through correct decisions according to the law, and a moderate hypocrisy, or a general tendency to obscure the status quo, with the understanding that it does not always conform to the ideal. Ultimately, the contribution advances certain theses. Recognizing the inescapability of discretion, it contends that not every dispute has a correct solution according to its own principles, and that relying solely on principles to guarantee this would be illusory and potentially dangerous. The pursuit of correctness remains a critical ideal precisely because reality does not reflect the Alexian vision of law or the “Herculean” judge. From a legal-philosophical perspective, the Codification of Principles reflects a mindset in which Apollonian-irenic perspectives prevail over conflictualist ones. In this, it embodies an ambitious neoconstitutionalism of principles which, to avoid implosion from hubris, must preserve a sense of its own limitations. The culture of neoconstitutionalism of principles finds its philosophical grounding in practical reason, which, by nature, rests on premises that are neither demonstrable nor foundational and, thus, are inherently limited. This limitation, and the corresponding variability in reasoning, logically necessitates recognizing the equally limited reasons of others. Within this framework, the public exchange of reasons becomes crucial, as do the techniques of reasoning and justification. Thus, the foundations of legislation and practices based on principles that align with the Rule of Law present an ethical challenge that places greater demands on those tasked with making concrete decisions. The neoconstitutionalism of principles, therefore, underscores the (self-)responsibility of every individual—whether vested with public or private powers. This assertion culminates in the conclusion that there can be no Rule of Law without a claim to correctness and justice, understood in its two facets: justice as generality and equality, and equity.