ZASADY PRAWA JAKO NORMATYWNA POSTAĆ WARTOŚCI
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Date
2006
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Wydział Prawa i Administracji UAM
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THE PRINCIPLES OF LAW AS A NORMATIVE FORM OF VALUES
Abstract
The principles of law have been vividly discussed for several dozens of years by jurists involved
in the theory and philosophy of law as well as scholars representing dogmatic disciplines
and practicing lawyers. This special interest has its primary source in the fact that the principles
of law have been recently far more widely used not only in the acts of la w application, but also in research
results where they have enabled formulation of important scientific concepts, and have
shown directions of further investigations.
The principles of law are usually defined as a category of the norms of conduct; a category
which distinguishes itself by a catalogue of certain specific features of its elements, such as: generality,
high rank in the hierarchical legal system, significance, gradation of realisation, possibility
of creating a conflict without the necessity of declaring any of the incompatible principles invalid,
the procedure of “weighing”, “balancing” or “harmonising” of incompatible principles when making
explicit or unambiguous decisions.
Principles qualified as the norms of conduct, on the other hand, share these characteristics
only slightly because due to their construction it is extremely difficult to identify precisely their addressees,
the circumstances in which they are applied and the prescribed (or prohibited) conduct.
This difficulty may be solved when the principles of law are not treated as a norm of conduct.
Although the principles and the norms have the same origin (genus) i.e. a directival expression, it
is the differences between them which are far more important. While the norms of conduct require
an obligation of a certain behaviour in specifically denoted circumstances from explicitly specified
subjects, the principles in that sequence consist of only one element: an obligation. It is because the
obligation created by principles does not require a certain, adequate conduct, but rather a realisation
of a certain value. All the properties distinguishing the principles are simply the properties of
those values, for which the principles constitute a normative form, while the legislator, besides the
competence to establish law, has also the competence to establish legal values. Therefore, even if
a value being implemented in the legal system has a previously determined definition, having its
origin in, e.g. generally accepted moral values, it will never become legally binding unless the legislative
fiat. However, how the obligation to realise that value will be “translated” into ordinary
norms, is a totally different matter.
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Citation
Ruch Prawniczy, Ekonomiczny i Socjologiczny 68, 2006, z. 1, s. 39-54.
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ISBN
ISSN
0035-9629