Understanding General Principles of Law: An Analysis
The General Principles of Law
The law, as formulated in laws or customs, includes certain rules that, without relying on the authority of the state or the interests of a particular social force, possess a normative force considered the most effective foundation for laws and customs. Classical Greece recognized the existence of an unwritten law derived from equity and tradition, thus acknowledging principles and customary law based on jus naturalist. Aristotle referred to these principles when speaking of right by nature in relation to law and justice. In Roman law, Cicero noted a law beyond written law and custom, derived from natural reason.
Following the transition of these general principles of law, the Middle Ages established them as the eternal law, i.e., the law of God (as stated by Baldo). This position changed in the modern age when the validity of these principles was questioned. It was concluded that the principles are subsidiary rules, with the law being the primary source of law.
In our civil code, general principles of law have a place as a secondary source, as indicated in Article 3, paragraph 4. This term is ambiguous due to the dual role of general principles of law in our legal system and the difficulty in defining them. One doctrinal group considers these principles as extra-positive, preceding law and custom, and embodying natural law. Another view sees them as positive legal norms found in law and custom. Given this ambiguity, we can define general principles of law as a set of rules not made or imposed by the community but manifested in law or custom. They are fundamental ideas of the legal organization, motors, and generators of the rule.
Conflict Between Law and General Principles
If a law contradicts general principles of law, the answer varies depending on the design used for natural law. Natural law proponents would consider the law null. Positivists, however, argue that a rule contradicting general principles of law cannot be considered null, building on the principle of legal certainty included in Article 9, paragraph 3 of the Constitution.
Types of General Principles of Law
There are three kinds of general principles of law:
Principle of Natural Justice
For De Castro, natural law is the basis of positive law. Although a distinction can be made between them, neither is superior to the other. If the basis of positive law is logically natural law, positive law absorbs some of these principles. Examples include respect for human dignity and the obligation of parents to feed their children. Another manifestation of natural law is forbidding unjust enrichment.
Traditional Principles
The people create unique values reported as a manifestation of God. This event is maintained over the years and manifests itself, for example, in the assessment of honor.
Political Principles
These establish living standards of society. Constituent principles are those that all laws must adhere to, which we can consider as the main ones. Regarding the value of these principles as guiding law, they also play a large role as guides to interpreting the law and constitution. Whenever we encounter a standard, we must primarily consider these principles when interpreting it. For a general principle of law to be applied directly or cited, it must be provided by law or legal doctrine. Therefore, there is no direct application of the same, but indirectly.