Legal Principles

4 Key excerpts on "Legal Principles"

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  eBook - ePub

  The Nature of the Common Law

  • Melvin Aron Eisenberg(Author)
  • 1991(Publication Date)
  • Harvard University Press

    (Publisher)

  This lack of clarity might not be troublesome if the standards described by the two different senses of principle were coextensive, but that is not the case. Principles in the first sense—moral standards—figure in adjudicative reasoning but are not themselves law. Principles in the second sense—legal standards—are by hypothesis law. It is true that some standards are principles in both senses. An example is the standard that no person should unjustly enrich himself at another’s expense. Many standards, however, are principles in only one of the two senses, because not all moral standards are adopted as law, and not all legal standards are grounded in morality. For example, that a promise should not be broken, and that one should rescue a person under hazard of death or injury if the rescue involves no risk, are standards of morality but not standards of the common law. Correspondingly, that an unrelied-upon donative promise is unenforceable, and that there is no liability for failure to rescue a stranger even though no risk is involved, are standards of the common law but not standards of morality.

  Because many standards are principles in only one of the two relevant senses, it is critical, in analyzing adjudicative reasoning, to hold the two meanings in separation. To that end I reserve the term moral norm for moral standards and the term principle for legal standards.

  Within the universe of legal standards there is no logical distinction between those that might be called principles and those that might be called rules.56 For most purposes the term legal rule adequately describes all legal standards, and that is the terminology I have up to now employed. For some purposes, however, a useful working distinction can be drawn between principles and rules: principles are relatively general legal standards, and rules are relatively specific legal standards.57 That distinction will be employed in this section.

  When principles and rules are conceived in this way, principles may be seen as explanations for rules, in the sense that we commonly invoke more general propositions to explain those that are more specific. However, the force of principles is not merely explanatory. Principles, like rules, are binding legal standards, and often determine results without the mediation of rules. So, for example, simple accident cases are often resolved by application of the principle of negligence. It is true that a principle may not fully determine every case to which it is relevant. An actor who fails to use due care, as required by the principle of negligence, may nevertheless be free from liability under some special rule, such as the rule governing the liability of manufacturers prior to MacPherson v. Buick Motor Co . However, a principle can be binding even though it does not fully determine every case to which it is relevant. Rules, as normally stated, also do not fully determine every case to which they are relevant.58

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  Prohibition of Abuse of Law

  A New General Principle of EU Law?

  • Rita de la Feria, Stefan Vogenauer, Rita de la Feria, Stefan Vogenauer(Authors)
  • 2011(Publication Date)
  • Hart Publishing

    (Publisher)

  1 European Union law undoubtedly contains such standards, but there is nothing distinctive about it in this respect, for the same could be said of all developed legal systems. The term could also be used to refer to Legal Principles or doctrines which are autonomous to the Union’s own legal order. Examples might include primacy, direct effect, national procedural autonomy and institutional balance. The Court of Justice considers these principles inherent in the Treaties. The former are potentially applicable to any situation falling within the scope of the latter. The content of such principles is of considerable interest, but again they are not qualitatively distinct as principles from autonomous national concepts.

  However, there is another set of principles which are recognised by the Court of Justice, but whose origins lie outside the Union legal order. Examples include legal certainty, proportionality, non-discrimination or equality and respect for fundamental rights. EU lawyers normally use the term ‘general principles’ as a term of art to refer to principles of this nature. Such principles are used mainly to fill gaps and resolve ambiguity in the written law, but they have a significance which is more far-reaching. Their capacity to legitimise Union law and the scope for judicial activism inherent in identifying and defining them gives the term general principles of law in this technical sense a special resonance.2

  III. AUTHORITY FOR THE APPLICATION OF GENERAL PRINCIPLES

  As is well known, the Statute of the International Court of Justice3 requires that Court to apply ‘the general principles of law recognised by civilised nations’. There has never been so clear an injunction in the Union legal order. However, Article 31 of the now-defunct European Coal and Steel Community (ECSC) Treaty required the Court of Justice to ‘ensure that in the interpretation and application of this Treaty, and of rules laid down for the implementation thereof, the law is observed’. That wording was substantially reproduced in what is now Article 19(1) TEU and is generally accepted to embrace something more than the European Treaties themselves. In addition, the grounds on which acts may be declared invalid by the Court of Justice include ‘infringement of the Treaties or of any rule of law relating to their application’.4 It is evident that this formula envisages recourse to rules found outside the Treaties themselves. The second paragraph of Article 340 TFEU is even clearer, requiring the Union to make good damage caused by its institutions or its servants ‘in accordance with the general principles common to the laws of the Member States’.5

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  Hearing the Voice of the Shingo Principles

  Creating Sustainable Cultures of Enterprise Excellence

  • Robert Derald Miller(Author)
  • 2018(Publication Date)
  • Productivity Press

    (Publisher)

  Teamwork, loyalty and innovation are values. They differ in meaning based on the experience of each unique individual. Their meaning and application change over time and our diverse interpretation of them drives our various behaviors. What then makes the difference between the felon and the policeman both possessing the same values?

  Framework for Understanding Principles

  Because a discussion of principles is not a typical business conversation, the following illustration (Figure 3.1 ) may be helpful in framing the discussion of a principle. This model will be referenced throughout the chapter.

  Figure 3.1 Framework for a principle.

  The Voice of a Principle

  A principle differs from a value in that it is not subject to personal interpretation; it is a statement of fact that expresses a natural law. Natural laws exist in nature not in the mind or personal opinion of individuals. Laws of nature have at their root some foundational truth. A foundational truth is something that has always been, is now and will always be the way things are. The fixed nature of a foundational truth is the reason a natural law stays the same over time and gives efficacy to a principle. This is a complex statement that will become much clearer as we advance through the chapter.

  The fixed nature of a foundational truth is the reason a natural law stays the same over time and gives efficacy to a principle.

  A principle is usually a statement of action that describes the natural law and when followed, governs an outcome. Principles are usually expressed in a way that describes a cause and effect. If you do this, you get that. Principles describe laws of nature that are irrefutable. Men and women do not create principles, they only discover them. Man-made laws attempt to mimic laws of nature by describing actions that should be taken in a society. If you follow the law, everything will be fine, but if you do not, the law usually describes some negative consequence. The difference is that societal laws are man-made; they change over time and their validity is constantly being challenged for one reason or another. In this respect natural laws are much different than man-made laws.

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  Reaffirming Legal Ethics

  Taking Stock and New Ideas

  • Kieran Tranter, Francesca Bartlett, Lillian Corbin, Michael Robertson, Reid Mortensen(Authors)
  • 2010(Publication Date)
  • Routledge

    (Publisher)

  This core concept of the rule of law – what we might call the value of legality – emphasizes constraint on the arbitrary exercise of power. 21 Philosophers who have given content to this core notion, including Joseph Raz, John Finnis and Lon Fuller, have argued that the law and legal institutions must have certain formal features if they are to perform well their function of safeguarding against the arbitrary exercise of power. 22 (Interestingly, there always seem to be eight enumerated criteria, the number eight apparently having a deep mystical connection with the rule of law.) While these criteria vary somewhat, I think the most important aspects, for the purposes of legal ethics, can be boiled down to a distinction between power as such and lawful power. The point of the law is to differentiate between de facto power, which might be possessed by the state or by private actors, and the exercise of power that is legitimated somehow by the community as a whole. The implication for legal ethics is that the role of lawyers should be understood in terms of the values associated with the social achievement represented by legality. 23 In my view, the most general obligation of all lawyers is to exhibit fidelity to enacted, positive law when representing clients. The reason the law deserves respect is that it represents a recognizable moral good of some sort. 24 However, being a moral good is not the same thing as being an ordinary moral good – the sort of thing that conscientious reflective people take into account in deciding how to act. Rather, the normative significance of law is related to the legitimacy of legal institutions and procedures, and this in turn is a matter of how responsive they are to the needs of people living together in communities, who require some means by which they can treat one another with respect, deep and persistent disagreement notwithstanding. This is why the lawyer in Simon’s example should not decide for herself what justice requires

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