The Role of the Principles of Law in the Legal Process and Peculiarities of Their Effect on Relations Regulation
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Abstract
In the article principles of law are analysed, as well as their functions in the legal process and the relation between principles of law and legal regulation. One attempts to show that the concept of principles of law, the place and meaning of principles of law in the legal system depends on whether the principles are attributed the feature of normative effect on social relations. Alongside, one reasons the concept of legal principles as independent elements of the legal system on the grounds of the methods of legal dogmatic, critical analysis and the comparative method. Such concept of legal principles is illustrated by examples from constitutional jurisprudence. All this permits to assert that in the legal process principles of law (not only legal norms) perform independent functions, characteristic of them only.
Principles of law are different from norms by peculiar, distinctive normative effect on the regulated social relations. This is linked with peculiarities of the manifestation of legal principles in legal acts. The capacious content of the principles and abstract formulation of legal principles in primary legal acts determine broad limits of effects on the regulated relations, therefore, under the regulating and determining effect of one and the same principle different areas of social life and the norms of law particularising this effect can find their place. The direct normative effect of principles of law manifests itself under certain conditions, i.e. only then (and to the corresponding extent), when one hold insufficiency of normative regulation (function of filling in the gaps of law) or inconsistence of normative regulation (function of solution of collisions of legal norms).
Principles of law are characterised by special, peculiar inter-competition, which is different than that of legal norms. It is possible that the content of a legal norm subordinated to one of principles of law does not conform to with the imperatives established in other principles of law. The conflict with the standard of behaviour of superior legal power always means that there is an inner conflict (collision) in the legal system, while the competition of provisions of the same legal power may be justified as being legal regulation establishing an exception, in case such an exception might be justified on the grounds of one or several principles of law, establishing fundamental values. The regulation establishing a compromise of different standards (values) of behaviour will not bring about a conflict within the legal system, if the compromise is established by proportional means, when the protection and ensuring of certain values are attempted by not denying the other ones, i.e. when different guidelines of legal regulation expressed in principles of law are reasonably coordinated. Principles of law are not only related with other elements of the legal system by means of logical (systemic) ties, the identification of which influences and shifts, i.e. determines, the content of legal norms, but also they also draw the line on the limits of the content of one another and coordinate all legal system, as well as exerts indirect influence on the regulated relations: they provide with an opportunity to assess the legality of legal provisions and that of decisions based on the latter, as well as their conformity to the legal standards established in the principles, and thus ensure harmony of the legal system, its inner consistency and non-discrepancy. Thus, the peculiarities of the regulatory effect of principles of law permit one to speak about peculiarities of systemic relations interfacing principles of law.
The issues of the regulatory effect of principles of law on social relations, which are raised in this article, are linked with the powers of entities of application of law and of its interpretation, their powers to officially define and consolidate the content and limits of the content of the regulatory (normative) effect of principles of law in acts of interpretation and application of law.
Principles of law are different from norms by peculiar, distinctive normative effect on the regulated social relations. This is linked with peculiarities of the manifestation of legal principles in legal acts. The capacious content of the principles and abstract formulation of legal principles in primary legal acts determine broad limits of effects on the regulated relations, therefore, under the regulating and determining effect of one and the same principle different areas of social life and the norms of law particularising this effect can find their place. The direct normative effect of principles of law manifests itself under certain conditions, i.e. only then (and to the corresponding extent), when one hold insufficiency of normative regulation (function of filling in the gaps of law) or inconsistence of normative regulation (function of solution of collisions of legal norms).
Principles of law are characterised by special, peculiar inter-competition, which is different than that of legal norms. It is possible that the content of a legal norm subordinated to one of principles of law does not conform to with the imperatives established in other principles of law. The conflict with the standard of behaviour of superior legal power always means that there is an inner conflict (collision) in the legal system, while the competition of provisions of the same legal power may be justified as being legal regulation establishing an exception, in case such an exception might be justified on the grounds of one or several principles of law, establishing fundamental values. The regulation establishing a compromise of different standards (values) of behaviour will not bring about a conflict within the legal system, if the compromise is established by proportional means, when the protection and ensuring of certain values are attempted by not denying the other ones, i.e. when different guidelines of legal regulation expressed in principles of law are reasonably coordinated. Principles of law are not only related with other elements of the legal system by means of logical (systemic) ties, the identification of which influences and shifts, i.e. determines, the content of legal norms, but also they also draw the line on the limits of the content of one another and coordinate all legal system, as well as exerts indirect influence on the regulated relations: they provide with an opportunity to assess the legality of legal provisions and that of decisions based on the latter, as well as their conformity to the legal standards established in the principles, and thus ensure harmony of the legal system, its inner consistency and non-discrepancy. Thus, the peculiarities of the regulatory effect of principles of law permit one to speak about peculiarities of systemic relations interfacing principles of law.
The issues of the regulatory effect of principles of law on social relations, which are raised in this article, are linked with the powers of entities of application of law and of its interpretation, their powers to officially define and consolidate the content and limits of the content of the regulatory (normative) effect of principles of law in acts of interpretation and application of law.
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Authors retain copyright of their work, with first publication rights granted to the Association for Learning Technology.
Please see Copyright and Licence Agreement for further details.
