Powstawanie i charakter ogólnych zasad prawa oraz ich rola w prawie międzynarodowym publicznym (z uwzględnieniem prawa wspólnotowego). Uwagi wprowadzające do analizy zagadnienia

Abstrakt

There are few broader studies on the general principles of the law in international legal literature, although they have been known since antiquity and are valued in all legal systems. In the international law they are deemed to be one of the three independent sources of the law. Their specific character, however, makes it that they must be taken into account in the process of establishment and application of international norms, including contracts and customs.

The fact that there are no analyses or legal awareness may lead (or even leads) to underestimation of this normative category, which is not right. Even in those studies in which this category is included, their authors do not analyse the way in which the general principles of the law were established, their character, their role and procedures of application in legal systems, nor their mutual relations with the norms resulting from other sources.

Concrete rules tat belong to the category of the general principles of the law are part of legal systems in the process of juridical practice at the moment when application is deemed to be a legal duty. Therefore this process is close to the creation of a customary law, although the contribution of a legal analysis (reflection) is considerable.

In so far as the internal systems of rationalism and the principles of legal logic automatically make us apply the general principles of the law, similar mechanisms do not always function (automatically) in the international public law. The more so that particular subjects attempt to interpret legal norms according to their own interests, even though it would violate their material contents.

Now considering the general principles of the law from the quantitative point of view, we state that most of them have a procedural meaning, and the material norms are relatively few. In the international public law (despite some procedural principles), however, there dominate, in terms of their quantity and contents, material principles. The range of application and the role of this category in both systems are similar, whereas applying this category in the development of the communal law is very common. First in the communal law, then in acquis communautaire, they played and still play important material, formal, and structural roles. The Tribunal of Justice judicature has contributed significantly to the development of those principles. It confirmed the high rank of the general principles of the law within the system of the European Communities, and their interactive character. The Constitution for Europe introduces a new, different from acquis, legal system. Did they play a role here? If so, which a role did they play?

Speaking in general terms, one should state that the general principles of the law always make up the foundation of any system in the developmental (creative), functional, relative, and interactive sense. Therefore each legal system, if it is to fulfil some basic requirements (to be logical, non-contradictory, and complete), should not only contain the general principles of the law, but also confer a respectively high rank on them in the structure of this system.