CATEGORY OF NORMS, PRINCIPLES AND LEGAL VALUES. METHODICAL REMARKS CONCERNING THE JURISPRUDENCE OF THE CONSTITUTIONAL TRIBUNAL (Kategoria norm, zasad oraz wartosci prawnych. Uwagi metodologiczne w zwiazku z orzecznictwem Trybunalu Konstytucyjnego)

• Authors: Kordela Marzena
• Languages of publication: PL

Abstracts

EN

The existing legal order contains not only norms of behavior (ordinary norms, rules) and principles (general norms), but also values. To be legally valid, a value has to be established by the lawmaker. Without such enactment, a value - similarly to norms of behaviour - cannot be a source of obligation for both private and public persons to act in a particular way. In modern constitutionalism, some values are left outside the sphere of discretion of the actual lawmaker (e.g. human rights, values of the rule by law, values of the 'internal morality of law'), but this does not change the fact that they also have the status of 'values of axiologically rational lawmaker', irrespective of whether particular legislative actions have been taken in order to introduce them explicitly to the system of law. The act of establishing values very often relates to 'ready-content' values, mostly of moral character, but without it those values would never obtain the status of 'legal values'. In the theory of law, categories of norms of behaviour (rules) and principles are relatively well developed, but the field of axiology is still waiting for due methodological attention.. Ordinary norms of behaviour and principles both belong to directive order, as they formulate particular obligations. A norm of behavior is defined a statement prescribing (or proscribing) a particular behaviour of specified persons in particular circumstances. Assuming that the definition above covers both rules and principles, a need appears to indicate their distinguishing features. In traditional jurisprudence, the following factors distinguish principles from rules: 1) high hierarchical position in the system of law; 2) high level of generality (the scope of application of principles is evidently wider than that of regulations); 3) strong axiological grounds; 4) social significance; 5) functioning as a constitutiove element of a particular legal institution (or more generally, a legal structure); 6) providing a basis for development of other norms of the system. Modern approach, derived from the theories of Dworkin and Alexy, emphasizes the following attributes of principles: 1) nonexclusive nature; 2) gradual way of accomplishing; 3) optimization (accepting, in part, Alexy's concept); 4) relevance and its gradations; 5) ability to collide with other principles; 6) non-derogation when broken by the competitive principle in the procedure of balancing. The above-mentioned distinctive traits are also the attributes of value. Consequently, the article offers the following definition of principles: principles are the norms of behaviour which command the accomplishment of a defined value. In its judicial decisions the Constitutional Tribunal consistently refers to a distinctive phrase: 'constitutional norms, principles or values', thereby making these categories separate standards of its decisions. It has full legitimacy to do so, as all subject subordinate to a particular legal system is under obligation to accomplish not only norms (rules and principles) binding on them, but also values. A breach of valid legal norms always constitutes breach of law.

Keywords

EN

AXIOLOGY; LEGAL VALUES; THEORY OF LAW

Discipline

• LAW_&_ADMINISTRATION: LAW & ADMINISTRATION

• Publisher: Kancelaria Sejmu / Chancellery of the Sejm
• Journal: Przegląd Sejmowy
• Year: 2009
• Issue: 5(94)
• Pages: 23-33
• Document type: ARTICLE

Contributors

author

Kordela Marzena

• Marzena Kordela, Uniwersytet im. Adama Mickiewicza, Wydzial Prawa i Administracji, ul. Sw. Marcin 90, 61-809 Poznan, Poland

Identifiers

CEJSH db identifier

09PLAAAA068810