Specyfika tzw. podstawowych zasad uznanych przez ustawy w porządku prawnym V Republiki Francuskiej
Specific Nature of the So-called Fundamental Principles Recognized by the Laws under the Legal Order of the Fifth French Republic
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In the Fifth French Republic, legal norms of a constitutional rank are rooted not only in the text of the Constitution, but also in the acts referred to by its preamble. In it and there is, among others, a reference to the preamble to the Constitution of the Fourth Republic, in which, in turn, one can find the reference to “fundamental principles recognized by the laws of the Republic.” This concept for the first time appeared in the jurisprudence of the French constitutional court in the decision of the Constitutional Council of 1971. Since then, there have been 11 times that the Constitutional Council attributed — in its case law — the rank of fundamental principle to certain legal principles. Unfortunately, there are indications that the conclusions of jurisprudence and findings of legal theorists concerning the way of identifi cation of these principles only partially dispelled doubts as to the indeterminate nature of the term and, therefore, defi ning the fundamental principles still largely depends on the arbitrary decision of constitutional judges. The position of the “fundamental principles recognized by the laws of the Republic” in the hierarchy of sources of law is not entirely clear. There are divergent opinions among the French constitutionalists as to whether there is an inner hierarchy of constitutional rights, and if so, what is the position of basic principles. From this it follows that in France it is possible to declare the unconstitutionality of laws due to their incompatibility with unspecified fundamental principles not ensuing directly from the text of the Constitution, whose place in the hierarchy of sources of law is the subject of dispute.
- Mgr, magister prawa Uniwersytetu Jagiellońskiego, magister prawa Uniwersytetu w Orleanie, główny specjalista w Departamencie Współpracy Międzynarodowej i Praw Człowieka Ministerstwa Sprawiedliwości
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