Law
Legal Principles
Legal principles are fundamental rules and guidelines that form the basis of the legal system. They are derived from legislation, judicial decisions, and legal scholarship, and serve as the foundation for interpreting and applying the law. These principles help ensure consistency, fairness, and predictability in legal outcomes.
Written by Perlego with AI-assistance
Related key terms
1 of 5
6 Key excerpts on "Legal Principles"
eBook - PDFThe Global Ethic and Law
Intersections and Interactions
- Bradley Shingleton, Eberhard Stilz(Authors)
- 2016(Publication Date)
- Nomos/Bloomsbury(Publisher)
27 The concept of a legal principle is not uncontroversial. The arguments and counter-arguments about the status of principles and their role in legal thought and practice have become increasingly complex and cannot be sum-marized or resolved here. 28 For present purposes, the focus is on the char-acteristic of a principle as a mediating device between legal sources and rules. This follows from its status as a distillation of sources such as case precedents, statutes, and constitutions that relate to specific legal rights and applications. They express, in more or less abstract form, the essence of a legal entitlement or requirement. In contrast to a rule, a principle does not present binary options, nor does it specify concrete obligations or prohibi-21 Ibid., 26. 22 Ibid., 87. 23 Ibid., 110ff. 24 Alexy, “On the Structure of Legal Principles,” 300. 25 Ibid., 298. 26 Ibid., 299. 27 Ibid., 295–97. 28 For a critique of Dworkin’s concept of principle, see Larry Alexander and Ken Kress, “Against Legal Principles,” 82 Iowa Law Review 739 (1997). Law, Principle, and the Global Ethic 49 tions. It does not tend to a single normative direction. 29 In both Dworkin’s and Alexy’s theories, principles can be seen as the conceptual means of formulating general norms in such a way that facilitates their consideration in light of factual circumstances. In the common law tradition, analogy is an important means of reasoning from one set of circumstances to another, and it entails derivation of a principle from one case in order to be applied in another. 30 Further, a principle is not merely a generalization of an existing legal rule, but may incorporate higher-order concerns of fairness and justice. As noted, the contents of the Global Ethic are not legal in intention and effect. Consequently, they cannot be equated with Legal Principles in a Dworkinian or Alexyian sense.
- Se-shauna Wheatle(Author)
- 2017(Publication Date)
- Hart Publishing(Publisher)
48 Judicial Conceptions of the Rule of Law is the most basic) unless such an intention is clearly manifested by unambigu-ous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment. That principle has been re-affirmed by this Court in recent cases. It is not new. … A statement concerning the improbability that Parliament would abrogate funda-mental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament. 48 For Justice Kirby, the principle of legality is a feature of constitutional and rights reasoning in the common law legal family: judges of our tradition incline to treat unlimited executive detention as incom-patible with contemporary notions of the rule of law. Hence, judges regard such unlimited detention with vigilance and suspicion. They do what they can within their constitutional functions to limit it and to subject it to express or implied restrictions defensive of individual liberty. 49 Justice Kirby’s statement evokes the elements of tradition, history, and cross-national trends that are associated with reasoning by implied constitutional principles. 50 The exact contours of the operation of the principle of legality as a route for applying the rule of law do, however, suffer from lack of clarity. 51 First, it is not clear what application of the rule of law will be chosen by judges, whether a substantive valorised application or a legalistic conception of the rule of law, for instance.
eBook - PDF- Yaakov Elman, Israel Gershoni(Authors)
- 2000(Publication Date)
- Yale University Press(Publisher)
This view abstracts from the purposive activity necessary to create and maintain a system of legal rules, contenting itself with a descrip-tion of the institutional framework within which this activity is assumed to take place. Legal philosophy has paid a heavy price for this abstraction. Within the school accepting it many disputes are left without any intelligible principle for resolving them. Take, for example, the argument whether law includes only rules of some general-ity, or should be regarded as embracing also particular or oc-casional commands. Some say that law implies generality of some sort, others deny this. Those who agree on the necessity for generality disagree on the proper way of defining it; does it require a class of acts, a class of persons, or both? 23 The whole argument, resting merely on affirmation and counteraffirmation, ends in a blind alley. I suggest that this debate is without intel-ligible content unless one starts with the obvious truth that the citizen cannot orient his conduct by law if what is called law confronts him merely with a series of sporadic and patteraless exercises of state power. If we ask what purpose is served by the conception of law as a hierarchy of command, the answer may be that this conception represents the legal expression of the political national state. A 23. See note 6, Chapter 2, p. 49. 110 THE C O N C E P T OF LAW less vague and, I believe, juster answer would be to say that it expresses a concern with the problem of resolving conflicts within the legal system. Indeed, one may say that it converts one princi-ple of the internal morality of law—that condemning contradic-tory laws—into an absolute to the neglect of all others. With Kelsen and Soml6 this concentration on internal coherence be-comes explicit as a fundamental element of their theories. 24 Certainly it is desirable that unresolved contradictions within a legal system should be avoided or should be subject to resolution when they arise.
eBook - PDFA Constitutional Order of States?
Essays in EU Law in Honour of Alan Dashwood
- Anthony Arnull, Catherine Barnard, Michael Dougan, Eleanor Spaventa, Anthony Arnull, Catherine Barnard, Michael Dougan, Eleanor Spaventa(Authors)
- 2011(Publication Date)
- Hart Publishing(Publisher)
179 10 The Role of General Principles of EU Law KOEN LENAERTS and JOSÉ A GUTIÉRREZ-FONS* T HE FUNCTION OF general principles in the EU legal order appears to be threefold. 1 First, they enable the European Court of Justice (ECJ) to fill normative gaps left either by the authors of the Treaty or by the EU legislator, to ensure the autonomy and coherence of the EU legal system. Secondly, they serve as an aid to interpretation, since both EU law and national law falling within the scope of EU law must be interpreted in light of the general principles. Finally, they may be relied upon as grounds for judicial review. EU legislation in breach of a general principle is to be held void and national law falling within the scope of EU law that contravenes a general principle must be set aside. 2 In addition to these three functions, general principles may also be said to contribute to the creation and development of a common constitutional space or, as Groussot puts it, a ‘ius commune europaeum’. 3 Since gen-eral principles are inspired by the constitutional traditions of the Member States, 4 national constitutional law and jurisprudence influence the way in which the ECJ incorporates general principles into the EU legal order. Thus, national constitutions and national constitutional courts play an important role in the formation of general principles, giving rise to a ‘bottom-up’ effect. Once a general principle is recognised, however, the autonomy of the Union legal order requires the ECJ to take into account * All opinions expressed herein are personal to the authors.
eBook - PDFEthical Leadership in International Organizations
Concepts, Narratives, Judgment, and Assessment
- Guilherme Vasconcelos Vilaça, Maria Varaki(Authors)
- 2021(Publication Date)
- Cambridge University Press(Publisher)
18 I follow Selznick and Fuller in equating rule of law with the value of legality. See Selznick, Law, Society and Industrial Justice, p. 11. Fuller refers to his list of eight criteria, which is usually taken as a standard formulation of the formal rule of law, as principles of legality: Lon L. Fuller, The Morality of Law, revised edition (New Haven: Yale University Press, 1969), p. 41. 88 Sanne Taekema the purpose, large parts of law are there to constitute power. 19 Law not only limits what legal actors can do, it creates some of these actors and specifies the legal powers they have. (Here, too, of course, people need to put these powers into practice.) Although this aspect of law is not my focus here, it is important to note, because the creation of powers enables arbitrary action, unless limita- tions are set at the same time. This is especially relevant in the bureaucratic context of organizations because creating new legal bodies is a trusted method for tackling governance problems. 20 As I mentioned in the Introduction, such a purposive account also implies that the rule of law is to be seen as a moral value. My understanding of morality is practical, in the sense that morality concerns evaluative and prescriptive aspects of human action. 21 Put simply, it concerns the question of what to do. Of course, there are many different accounts of how that question should be addressed. Is it a matter of deontological principles, consequentialism, or virtu- ous character? If these different ethical perspectives are considered broadly, I would think attention for the value of the rule of law is compatible with each. Since the combination with a virtue ethical account is less obvious than with deontology or consequentialism, I will focus the argument on that. Moreover, ethical leadership is often described as a matter of character and virtue, which makes the link to virtue ethics more relevant.
- Hilde K Ellingsen(Author)
- 2021(Publication Date)
- Hart Publishing(Publisher)
5 See further PP Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467; and BZ Tamanaha, On the Rule of Law: History, Politics, Theory (Cambridge University Press 2004) 91–113. 6 Dworkin includes individual rights within the rule of law, see R Dworkin, A Matter of Principle (Harvard University Press 1985). He presents two different conceptions of the rule of law, what he calls the ‘rule-book conception’ and the ‘rights conception’ respectively, and argues in favour of the latter (see in particular ibid 9–33). 7 These characteristics are often variations of Fuller’s lists of different traits that together constitute the ‘inner morality’ of law: rules should be general, publicised, prospective, understandable, practicable, stable and congruent. See LL Fuller, The Morality of Law (Yale University Press 1965) 46–94. 8 Amongst others, Raz emphasises the need for an independent judiciary and access to court; see J Raz, The Authority of Law: Essays on Law and Morality (Clarendon Press 1979) 216–17. 9 BZ Tamanaha, ‘A Concise Guide to the Rule of Law’ in G Palombella and N Walker (eds), Relocating the Rule of Law (Hart Publishing 2009) 3, 11. 10 Case C-64/16 ASJP [2018] and Case C-216/18 PPU LM [2018]. 11 Case C-216/18 PPU LM [2018] para 48. The Court stressed national courts’ role in ensuring ‘the full application of EU law in all Member States and judicial protection of the rights of individuals under that law’ (ibid para 50). II. The Rule of Law (as an ‘Essentially Contested Concept’) Standing is a necessary prerequisite for gaining access to court, and the Court has stressed that access to court constitutes an essential element of a Union based on the rule of law. 3 Yet what this means more precisely is difficult to pin down, since we are dealing with an elusive concept. The ‘rule of law’ can in fact be considered an ‘essen-tially contested concept’, insofar as disagreement about this notion extends to its core.
Index pages curate the most relevant extracts from our library of academic textbooks. They’ve been created using an in-house natural language model (NLM), each adding context and meaning to key research topics.
