General Principles of Law in an Age of Constitutional Identity

Abstract

The author analyzes the general principles of law in constitutional adjudication. This phenomenon is considered in the light of the doctrine of constitutional identity spreading in the legal academia and practice of the Constitutional Court of the Russian Federation. The article consists of two parts. The argument is advanced in first part of a paper that those principles applied in constitutional adjudication through using the legal Latin. Special attention is paid to international law. Those principles are received here a normative framework and have great conceptual significance for the formation of general international law. A distinction is made between international custom and the general principles of law as often nonconsensual rules. The thesis is substantiated that, the essence of the general principles of law is in their definition as unwritten law. From historical point of view, the general principles of law are unthinkable outside the natural law as a type of legal philosophy. The main points of the presented paper are illustrated by the example of the proportionality principle. In second part it begins with an analysis of the three main stages of the proof of the general principles of law. On the first stage, the number of legal systems selected for comparative analysis is limited. In the second stage, an assessment of achieving critical mass is made in order to recognize the universality of a particular principle. The third stage involves the establishment of the adequacy of a particular general principle of law to the model of Russian judicial constitutional review. The thesis is substantiated in this part of paper that, general principles have an integrative role in municipal private and public law. Proportionality as an integral principle and judicial technique ensures the harmonization of the national legal order. The general principles of law are the normative grounds for judicial constitutional review. They impose legal obligations on the most important public authorities.