GENERAL PRINCIPLES OF LAW

Elena ANGHEL*

Abstract
According to Professor Djuvara “law can be a science, and legal knowledge can also become science when, referring
to a number as large as possible of acts of those covered by law, sorts and connects them by their essential characters upon
legal concepts or principles which are universally valid, just like the laws of nature”.
The general principles of law take a privileged place in the positive legal order and represent the foundation of any
legal construction. The essence of the legal principles resides in their generality. In respect of the term “general”, Franck
Moderne raised the question on the degree of generality used in order to define a principle as being general – at the level
of an institution, of a branch of the law or at the level of the entire legal order.
The purpose of this study is to find out the characteristics of law principles. In our opinion, four characteristics can
be mentioned.

Keywords: principle, general, experience, values, universal.

and impersonal. According to Djuvara, the rule of

1. Introduction law was always created by individual cases, by
means of their comparison, a higher and higher level
In its great historical spatial diversity, despite
of generality being developed. In this respect, the
the natural differences, the law has a permanent
author refers to the Greek primitive organization
nature, represented by a bunch of constants. Not only
period, described by Homer, when the resolution
principles, but institutions are conserved, according
ordered by the king, in case of a dispute, called
to the continuity of social life; the state does not
„Themistes”, was repeated in all similar cases so
create law, but establishes a law, the positive law”1.
that, due to his will of reaching the same settlement,
The general principles of law take a privileged
the idea of a general rule emerged over time3.
place in the positive legal order and represent the
Nowadays, statist law provides such general
foundation of any legal construction. The essence of
regulations that they can embrace the whole activity
the legal principles resides in their generality.
of a society. The Napoleonic Code has the great
The purpose of this study is to find out the
merit of having worded „precisely and clearly so
characteristics of law principles. In our opinion, four
general regulations that they could regulate almost
characteristics can be mentioned.
all social life of its time”4. Djuvara concludes that, in
the field of the law, generalization is necessarily
required by the „logical postulate which rules the
2. Content entire legal thinking, namely the rational idea of
2.1. The generality of law principles justice”5.
Mircea Djuvara pointed out that „in the filed of Therefore, the generality is a defining element
the science, the scientific progress consists of of the law system. But, within the law framework,
generalization. The scientific method consists of the „the legal construction of principles is the ultimate
knowledge of as many actual cases as possible and expression of refined abstraction”6. The generality is
of their concentration in unitary laws by means of related to the law principles essence, is the „the core
their essential similarities. The law of gravitation of the definition”, according to Bergel.
was a huge progress due to the fact it succeeded in Gheorghe Mihai notes that the principles of the
combining a huge number of phenomena”2. law are called both general and fundamental, without
In its entirety, the science of the law tends to the distinction between these two terms being
generalization: the law is the result of judgment and explained. In his opinion, „fundamental” is the
the judgment consists of generalization; positive law attribute of something that has the capacity to
has a general application; the rule of law is general substantiate, and „general”, in current sense,
concerns „what is valid for a whole class of objects,

*
Lecturer phd, The Faculty of Juridical Sciences ”Nicolae Titulescu” University, Bucharest, Văcăresti Blvd, No. 185, Bucharest, Romania
(e-mail: elena_comsa@yahoo.com).
1
Gheorghe Mihai, Fundamentele dreptului, vol. I - II, All Beck Publishing House, Bucharest, 2003, pag. 250.
2
Mircea Djuvara, Teoria generală a dreptului (Enciclopedie juridică), All Publishing House, Bucharest, 1995, pag. 225.
3
Idem, pag. 234.
4
Idem, pag. 468.
5
Idem, pag. 447.
6
Idem, pag. 312.
332 Challenges of the Knowledge Society. Public law

what belongs to the entire class”. Therefore, the Philippe Jestaz is reserved in expressing a clear
principle is „the simplest and the most general point of view, both in what concerns the definition
sentence of which we can infer a totality of of general principle concept which has so many
knowledge or precepts” and which substantiates, as meanings that, according to the author, we need to
an essential judgment, this entirety”7. resort to our intuition, and in what concerns the
Furthermore, the author insists on the fact that generality of the principles of law13. In his opinion,
we should not confuse the generality of a principle the principles of law have three characteristics:
with its extension. The principle, as a main idea, is permanent, general and unanswerable. The general
only one, the founder of the law, the rest being characteristic consists of the fact that the principle
„founded founders, not principles”8. For example, crosses several institutions or branches of law; for
the principle of the freedom to adduce the evidence example, the principle which good faith is presumed
is an extension of the principle of freedom. on finds its applicability in various fields. Any rule
Therefore, principles are not ranked according to the of law entails in its structure a presumed fact (for
degree of generality, all of them being „the most example, any married woman gives birth to a child)
general sentences”. According to the author, if we and a consequence of this fact (the child’s father is
refer to principles which are specific to certain areas the husband of the mother). However, a principle
of the law, we should call them „rules of method”, consists of a multitude of presumed facts, so that we
mandatory rules, and not guidelines. are not aware of the consequences of the fact unless
Most authors express a contrary opinion, we resort to certain rules of law. Jestaz concludes
meaning that in their opinion, principles have a that the generality of a principle is a very relative
different degree of generality. Therefore, Sofia concept, due to the fact that there is no standard to
Popescu shows that the general principles of law are establish the degree of generality where a regulation
different in terms of the degree of generality9: some becomes principle.
of them have full applicability, being valid for the The generality of the general principles of law
entire law system, while others are applicable only is „maximum”, therefore they cannot be placed at the
to private law or public law or to a certain branch of same level with the rules of law. We share the
the law. While branch legal disciplines organize opinion of Jean - Louis Bergel, according to which
branch principles, the general theory of law concerns the aforementioned expression, although pleonastic,
the most general principles. By setting aside the is the most appropriate, due to the fact that it outlines
whole positive law, the general theory of law, by the specific generality of these principles and
means of synthesis, can approach to universality. distinguishes them, in this regard, from the rules of
In what concerns the principles of international law. Therefore, a rule of law is general because it is
law10, Grigore Geamănu distinguishes, according to applicable to an indefinite number of acts and facts,
their generality, between fundamental principles and however, in relation to some of them, it can have a
other principles of international law. The special characteristic. On the contrary, a principle is
fundamental principles „represent a full general „in what concerns an indefinite series of
generalization of the international rules of law”, by applications”14. In order to reinforce this statement,
being part of that bundle of rules which is the professor J. Boulanger exemplifies: the provision of
essential and specific part of this law11. The other the Civil Code according to which the conceived
principles of international law have a lower degree child is entitled to receive inheritance, is only a rule
of generality, according to the author. of law on inheritable devolution, while infans
Furthermore, Franck Moderne wonders what conceptus pro nato habetur quotiens de commodis
degree of generality would be needed in order to eius agitur (the conceived child is considered born
classify a principle as being general, the generality whenever his interests are concerned) is a genuine
being perceived, as Norberto Bobbio shown, at the rule of law, by being applied in all situations which
level of an institution, of a branch of the law or at the relate to the beginning of personality development.
level of the entire legal order12. Therefore, Bergel concludes that the principles
govern the positive law, by drawing the limits of the

7
Gheorghe Mihai, Fundamentele dreptului, vol. I - II, All Beck Publishing House, Bucharest, 2003, pag. 362.
8
Gheorghe Mihai, Despre principii în drept, in Studii de Drept Românesc, year 19 (43), no. 3-4/1998, pag. 273-285.
9
Sofia Popescu, Principiile generale ale dreptului, din nou în atenţie, în Studii de Drept Românesc, year 12 (45), no. 1-2/2000, pag. 7-25.
10
Roxana-Mariana Popescu, Introducere în dreptul Uniunii Europene, Universul Juridic Publishing House, București, pag. 39:
international law principles should not be confused with the EU principles (Augustina Dumitrașcu, Roxana-Mariana Popescu, Dreptul Uniunii
Europene. Sinteze și aplicații, ediția a II-a, revăzută și adăugită, Universul Juridic, București, 2015, pag. 128).
11
Grigore Geamănu, Principiile fundamentale ale dreptului internaţional contemporan, Edit. Didactică şi Pedagogică Publishing House,
Bucharest, 1967, pag. 15.
12
Franck Moderne, Légitimité des principes généraux et théorie du droit, in Revue Française de Droit Administratif no. 15(4)/1999, pag.
723
13
Philippe Jestaz, Principes généraux, adages et sources du droit en droit français, in Les principes généraux du droit, Droit français,
Droits de pays arabes, droit musulman, Bruylant Bruxelles, 2005, pag. 171.
14
Jean - Louis Bergel, Méthodes du droit. Théorie générale du droit, 2nd edition, Dalloz Publishing House, 1989, pag. 100.
Elena ANGHEL 333

branches of law, while the rules of law are only reached. Out of these general laws, legal
applications of or exceptions from these principles. consciousness achieves more precise forms of
Gh. Mihai provides a response to this positive law, which are deemed outcomes of the
statement, namely, by being the most general legal techniques. The principles of law emerge from
sentence, the principle does not admit exceptions, the legal text established as such, whereas „the legal
even more if we talk about a basic principle; rules experts seek the logical ground of each provision”.
involve exceptions, however, „if a principle is The principles represent the higher level of
declared as such, the exceptions abolish its capacity abstraction, but they have no meaning outside the
of principle”15. The author criticizes those actual social facts: these principles „have no value,
definitions which distinguish between the principles unless they are in relation to the initial particular
and the rules of law, by arguing that the first are cases they emerge from”18. Therefore, „all the
abstract and general, and the letter would be actual principles of law are the outcome of continuous and
and particular: „by taking over the abstract and necessary observations of the necessary needs of the
general characteristics from the filed of the society and these principles are not only the outcome
regulations and moving them into the filed of the of abstract speculation”.
principles, means that all regulations are converted The philosophy of law recorded different
into principles or that all principles are converted guidelines in the construction of the principles of
into regulations”16. law. Therefore, Paul Roubier distinguishes three
According to Gh. Mihai, the distinction important categories of thinking: formalist school
between principles and regulations is performed by (positivists), idealist school (iusnaturalists) and
means of justification: „the principle is the realist school, which gathers under this name,
conceptual and axiological horizon of the historical and sociological doctrines19. Positivists
regulations, the regulations are valid constructions of thought that any rule of law is an expression of the
this horizon”17. The differences between the king’s power; the rule is mandatory for the
principles of law and the rules of law shall be individuals, regardless if it is applied, therefore, the
discussed in another chapter. effectiveness of the rule is not important according
to this theory.
2.2. The principles of law are the outcome of the Iusnaturalists substantiated law on a bundle of
experience
natural and permanent principles, the systems of
By defining the principles as the most general positive law emerge from. These principles emerge
ideas which arise from judgment and which from the nature of things, they are ordered by the
substantiate law, we should not understand that they judgment, by remaining the same, regardless time
could be designed outside social facts. They have to and space. „The lawfulness of the rule emerges from
support the totality of rules of positive law and to its compliance with an intangible pattern (natural or
find their justification within social life. Therefore, rational order)”, therefore the lawmaker is also
we point out that the principles are not the outcome bound to comply with it, according to Roubier.
of a simple speculation, but on the contrary they are By expressing doubt against the transcendental
created by means of the experience. nature of law and by disclaiming the ideas of natural
Mircea Djuvara wrote that, setting aside the law, realist school sought the ground of the law in
experience in the field of the law is nonsense, by the life experience of people: the law is a
being impossible to create law only by means of spontaneous outcome of social life and every rule
rational deductions. „The knowledge of the legal emerges from experience. Realists tried to point out
phenomenon should start from the practice the influences of the past, of the traditions, by being
developed from actual cases. In order for the truth to concerned not about the natural human being, but
be achieved, the legal science should start from the about the real human being, not about the alleged
actual to the abstract and not the other way”. Here is permanent principles, but by laws emerged from the
the how the instruments of law are created according spirit of the people.
to the author: the law starts by ascertaining the things By being against the codification of law,
of the society, it always starts from the examination German historical school substantiated law on
of particular cases, which applies legal and rational experience. Savigny, the prominent representative of
assessments to, by means of the legal consciousness this theory, believes that the law is the work of
of the society. Following the assessment of these nature, so that it does not have to be created, but it is
actual social relationships, by means of induction, self-created as a natural phenomenon, such as
higher and higher levels of generalization are religion or language. The law is the outcome of a

15
Gheorghe Mihai, Fundamentele dreptului. Teoria răspunderii juridice, vol. V, C. H. Beck Publishing House, Bucharest, 2006, pag. 140.
16
Gheorghe Mihai, Despre principii în drept, in Studii de Drept Românesc, year 19 (43), no. 3-4/1998, pag. 273-285.
17
Gheorghe Mihai, Fundamentele dreptului, vol. I - II, All Beck Publishing House, Bucharest, 2003, pag. 363.
18
Mircea Djuvara, op. cit., pag. 245 and the following.
19
Paul Roubier, op. cit., pag. 55.
334 Challenges of the Knowledge Society. Public law

collective action, it is developed at the same time consciousness of the society that the respective legal
with the spirit of the people and reflects its entire system remains immovable under the power of
history; therefore, it cannot find its expression in tradition; this is the case of Muslim system, which
law, but in tradition. The tradition watches over the still tries to break away from the clutches of
conservation of the law, by representing the tradition, by slowly progressing under the influence
inheritance transmitted sequentially from a of Western law principles.
generation to another. There is no place where the law can afford to
The sociological school, represented by ignore the experience that its history has gained for
Durkheim, developed the ideas of Auguste Comte, centuries. Legislative experience „is not the
whose research followed the method of observation experience of the legal normality, which is
of facts and the role of the experience. Durkheim established in rules, but of its clear disclosure, as
believes that the law is the result of the intervention unambiguous as possible and especially, as public as
of the society in its own interest, namely in order to possible. According to Gheorghe Mihai, this
improve life conditions of social body. The social experience could be a logical historical finishing of
interest is what prevails: the law emerges from the human normative experience, or in other words, it
society and not from the individual. would be the formalized prescriptive living”.22 In our
Free Law School was established by François opinion, the principles of law emerge from this clear
Gény, as a fight against the theories which believed disclosure and serve as a basis for positive law.
that the legislation is the sole source of the law. The
arguments against these theories were the following: 2.3. The principles of law are axiologically
established
the law is a spontaneous outcome of the society; the
formal sources of law are only procedures for the The law system cannot be reduced to a set of
ascertainment of the law, in fact, the law precedes axiomatic rules of law, as Kelsen believed, but it
them, due to the fact the law is the outcome of social necessarily entails value judgments. „The
powers, it does not emerge from the state, but from importance lies in the social value of the result and
the society. According to Roubier, the rules of law not in the logical beauty of laws. If law is faulty,
system substantiated on formal sources, has, to some misfit, anti-economic or even unfair, a perfectly
extent, a virtual characteristic, an absolute overlap logical judgment will only serve to increase the flaw
between the law of the sources and the actually of the premise, of the initial rule”23.
practiced law, being impossible. The validity of According to Ion Craiovan, the law is
formal sources of law depends on their compliance „generated, structured and directed towards the
with the real sources20. inseparable connection with the constellation of
According to professor Benoît Jeanneau, most values of the historical time in which it is developed
of the general principles of law, are the result of the and in certain conditions the law itself accedes to the
wording of latent rules emerging from social life, statute of value”24. The author conceives the culture
rules emerged from the repetition of fragmentary as a merger between the knowledge and the value.
text, which at one point in time, the judge promoted The knowledge is not sufficient in order to grant an
them as more or less general principles21. unitary view to the act of culture, therefore the value
We note that this theory is shared by Mircea appears as a “fulfillment of the knowledge” in
Djuvara. According to the author’s opinion, the law relation to human beings, their aspirations and needs.
actually practiced within a country is not necessarily The law always starts from the social actions,
and absolutely in accordance with the law drawn up but it also means legal consciousness, ideals and
by its sources. There is a „positive latent law” social values. Gheorghe Mihai deeply outlines that
beyond the construction of the positive law: it is the people do not coexist, people live together25. The
own law of the society, consisting of a series of coexistence is specific to the herds, packs or hordes;
social practices which, without being guaranteed by but the human community means collaboration,
the state authority, have a long practical efficiency cooperation, unity which implies the value
within society life. awareness. The individuals, as free beings endowed
However, every legal system expresses the with sense and consciousness, choose their
community life experience of that space, an behaviors, measure their actions, relate to behavior
experience which varies depending on ideologies, standards and assess the consequences of their
traditions and religious symbols. Sometimes, this actions. „The actual law is not everlasting outside
positive law has such strong roots in the these values and these values are always typically

20
Paul Roubier, op. cit., pag. 76 and the following.
21
Benoît Jeanneau, Les règles et principes non écrits en droit public, sous la direction de Pierre Avril et Michel Verpeaux, Panthon Assas
Publishing House, Paris, 2000, pag. 12.
22
Gheorghe Mihai, Fundamentele dreptului. Teoria izvoarelor dreptului obiectiv, vol. III, All Beck Publishing House, Bucharest, 2004, pag. 35.
23
Dan Claudiu Dănişor, Ion Dogaru, Gheorghe Dănişor, Teoria generală a dreptului, C. H. Beck Publishing House, Bucharest, 2006, pag. 35.
24
Ion Craiovan, Tratat de teoria generală a dreptului, Universul Juridic Publishing House, Bucharest, 2007, pag. 31.
25
Gheorghe Mihai, Fundamentele dreptului, vol. I - II, All Beck Publishing House, Bucharest, 2003, pag. 164 and the following.
Elena ANGHEL 335

expressed in the statements of the principles of a law of the values”28. The law is mandatory within the
system”. relations between the individuals not as a necessary
The principles of the law are the expression of result of the coercive power of the state, but as the
the values promoted and defended by means of the adherence of the members of the society to its
law. Such great is the importance of the values, that regulations. The individuals willingly comply with
they classify any positive law from the axiological the rules of positive law in so far they give
point of view. However, the people do not cohabit expression of the values emerging from the legal
only legally, but also morally, politically and consciousness of the society. Therefore, the law has
religiously. The law does not exhaust the wealth of to be accepted by the members of the society, in
the horizon of the values: besides the independent terms of values and regulation, exactly in this order,
legal values which build the rules of law, there are due to the fact that the principles and accordingly,
also other values, namely non-legal values (equity, the values these principles assimilate, represent the
welfare, utility, dignity, truth) which are necessary bases of the objective law, have logical precedence
for the human coexistence and which the law takes against the regulations of the positive law.
over, legalizes, promotes and defends by means of Therefore, the axiological dimensions of the
its rules. principles also impact the rules of positive law.
The law, as a dimension of the society, is not According to Gheorghe Mihai, the value „is
limited to the totality of the legal regulations in not given, as the properties of the things, it is not
force; the values are those which give meaning to the based on the real world, but on the ideal world, of
rigid normative feature. The basis of the law is the pure validity”29. However, although the
praxio-axiological26. The bases of positive law individuals are similar by means of the values they
consist of principles, values, ideals, which have receive, they are still different by means of their
accompanied the society since the beginning of its valorization, due to the fact that „each and every
existence. By being guided by the ideals, the law is value is valued by means of the actions”.
a social control mean for the individual: human If the law were not related to values, the law
beings comply with the rules of law due to the fact would be an artificial structure of rules without
they grant them cultural normative models, which scopes. The individual acts in a regulated
they acknowledge as being necessary for them and framework; as the values are expressed by rules of
they follow them. The law is valued; it sums up the law, the individuals value them by means of their
standards of conduct emerging from the actions. For human beings, the value is the reference
consciousness of value of the society. By means of of the responsibility: they assume the values that the
these ideals, the law falls under the scope of „must law crystallizes in its rules of law and act according
be”. According to Mircea Djuvara, the ascertainment to their consciousness. Gheorghe Mihai
of the ideal of a society must be the beginning of any distinguishes between moral assumption and legal
law scientific research. assumption of social values, therefore: the moral
Therefore, the development of the law falls assumption of the value is „universal and absolute
under the scope of the values and principles. The and no speculative derogation of it impacts its
values belong to the given of the law, they are always substance”, while the legal assumption of the same
social. The principles are value bearers. As the value is „neither universal, nor absolute, as long as
principles are the bases of the positive law, the the same lawmaker falls in contraction in the same
values are crystallized, enshrined and protect by respect”30.
rules of law. The values impact the legal order both
in the process of law creation, due to the fact the 2.4. Certain principles of law benefit from
universality
lawmaker creates the rules of law in this axiological
space, and in the process of law fulfillment, thus the In antiquity, Cicero expresses his belief in an
values being promoted by effective legal means27. universal law and according to him „it is not one
In the application of the law, the enshrined thing in Rome, and other at Athens; one thing today
values become references for the personality of the and another tomorrow, but in all times and nations
individual who, endowed with responsibility, will this universal law must forever reign, eternal and
guide and assess the conduct according to their imperishable”31. Iusnaturalists strongly supported
standards. Therefore, „the normative legal universe the transcendental nature of law, from a dual
is built on principles and is humanized by the work perspective: there is natural law, consisting of the

26
Gheorghe Mihai, Natura dreptului: ştiinţă sau artă?, in Studii de Drept Românesc, year 12 (45), no. 1-2/2000, pag. 42.
27
Ioan Ceterchi, Ion Craiovan, Introducere în teoria generală a dreptului, All Publishing House, Bucharest, 1992, p. 27.
28
Gheorghe Mihai, Fundamentele dreptului. Teoria izvoarelor dreptului obiectiv, vol. III, All Beck Publishing House, Bucharest, 2004, pag.
155.
29
Gheorghe Mihai, Fundamentele dreptului. Teoria răspunderii juridice, vol. V, C. H. Beck Publishing House, Bucharest, 2006, pag. 42
and the following.
30
Idem, pag. 55.
31
Apud Ion Craiovan, Tratat de teoria generală a dreptului, Universul Juridic Publishing House, Bucharest, 2007, p. 91.
336 Challenges of the Knowledge Society. Public law

totality of natural, permanent principles, which are mandatory for the judgment”, these principles which
dictated by the judgment, being the same regardless substantiate law are transferred from a legal system
of time and space; the positive law emerges from to another, from the internal legal order to the
these eternal principles and by being the work of a international legal order and vice versa.
lawmaker, it can only be changeable and imperfect. Under the integration into an united Europe, it
If by 18 century, it was considered that the law is easy to note the tendency of the law towards
was universal and unchangeable, being developed by universality. The predictions of Nicolae Titulescu –
human judgment out of the nature of things, „starting from national, passing to regional, heading
Montesquieu revolutionized this thinking, by towards universal” were fulfilled. The European
proving that law is the result of development factors. Union is opened to all European states which
A great number of theories were developed against undertake to jointly promote universal values such
metaphysical foundation of law, by disclaiming the as, humanism, human dignity, freedom, equality,
ideas of natural law. The historicism denied the solidarity, tolerance. The violation of the principle of
universality of principles, by claiming that a equality and non-discrimination exists when a
historical a priori, which emerges from the spirit of different treatment is applied to equal cases without
the nature corresponds to each period and people. any objective and reasonable grounds, or if there is a
For the positivists, the law is the work of the disproportion between the scope aimed by means of
lawmaker, for the sociologists is the result of facts. the unequal treatment and the used means34. The
According to Alexandru Văllimărescu „in building of the European construction entails a
order to avoid the free will of the lawmaker, we have blending of different legal orders, without impacting
to admit the existence of an a priori law, developed the foundation of member states national identity,
by human judgment which is also incumbent on the and the reconfiguration of national, European and
lawmaker”32. It is important to admit the existence international relations. Such a difficult process
of certain principles which are binding on would not be possible if the sense of European
everybody, to find an „outside rule”, regardless if we identity would not be expressed by means of
call it natural law, rational or objective law, donné or universal principles and values, which breathe life
règle du droit. The author explains that „the into this continent35. It is important to keep in mind
postulation of the existence of an absolute principle, that in the European Union, the European Court of
which depends neither on the contingency of fact nor Justice “develops the general principles of law,
on the free will of the people who hold the great which can be considered to be judge-made law –
power”, is essential. almost quasi-legislative”36.
Nowadays, we witness to some extent, the Giorgio del Vecchio pointed out that we should
revival of the natural law. The principles of law not understand that the general principles of law
represent the universal bases of the legal field, due belong to a certain positive law system. The
to the fact they can be found in the depth of each statement according to which the general principles
positive law system. As of 1920, „the general of law are valid for only one people and that there
principles of law recognized by civilized nations” are as many general principles as particular systems,
were proclaimed in art. 38 of the Statute of the would be contrary to the universal belief in ratio
International Court of Justice, by being expressly juris, which dates from Roman times and which is
recognized as a source of public international law. still valid today37.
The current international view reinstates the The objective law benefits form universality,
universality of these principles, the establishment of due to the fact it is based on principles. The
mechanisms appropriate in order to ensure the principles, in terms of ontology, give meaning to the
globally protection of the inherent rights, natural for law from the beginning of the society, namely before
individuals, being in the center of the concerns of all being discovered and worded by the law science.
states. In our opinion the institution of the They substantiate law from the axiological
Ombudsman is an extremely important institution of perspective and guide the lawmaker in the
the European scene considering the role played by it construction of positive law.
in protecting the rights and interests of the European
citizens33 As they „express a sole truth which is

32
Alexandru Văllimărescu, Tratat de Enciclopedia dreptului, Lumina Lex Publishing House, Bucharest, 1999, pag. 287.
33
Elena Emilia Ştefan, The role of the Ombudsman in improving the activity of the public administration, Public Law Review no.3/2014,
pag.127-135.
34
Decision no. 107/1995 of the Constitutional Court, published in Official Journal no. 85/1996, apud Elena Emilia Ștefan, “Opinions on
the right to nondiscrimination”, CKS e-Book 2015, pag. 540-544.
35
For more details on European Union’s legal principles, see Laura-Cristiana Spătaru-Negură, Old and New Legal Typologies, CKS e-
Book 2014, pag. 365-466.
36
Laura-Cristiana Spătaru-Negură, Some Aspects Regarding Translation Divergences Between the Authentic Texts of the European Union,
CKS e-Book 2014, pag. 378.
37
Apud Sofia Popescu, Principiile generale ale dreptului, din nou în atenţie, in Studii de Drept Românesc, year 12 (45), no. 1-2/2000, pag. 9.
Elena ANGHEL 337

3. Conclusions their universal value, the fact that they „are identical
In its great historical spatial diversity, despite or quasi-identical in Romanian law, in, Islamic
the natural differences, the law has a permanent Sharia and in the modern European legal systems”40.
These principles are and shall remain universal as
nature, represented by a bunch of constants. Positive
they crystallize eternal values for human beings of
law „does not exhaust the extension of the Law, and
all time and places, independently of the social
does not rebuild its foundations. Not only principles,
realities which delimitate their legal status of persons
but institutions are conserved, according to the
continuity of social life; the state does not create law, in law.
but establishes a law, the positive law”38. Philippe According to professor Djuvara, „the law can
be a science, and the legal knowledge is converted in
Jestaz assigns a permanent feature to the principles
science when, by covering a large number of the
of law, by showing that „they crossed centuries and
documents contemplating law, sorts and connects
survived numerous legislative convulsions”39.
them according to their essential characters by
The assessment of legal principles, as found in
the Western and Arab-Muslim legal systems, reveals concepts or universal legal principles, just like the
laws of nature”41.

References:
 Alexandru Văllimărescu, Tratat de Enciclopedia dreptului (Lumina Lex Publishing House, Bucharest, 1999);
 Augustina Dumitrașcu, Roxana-Mariana Popescu, Dreptul Uniunii Europene. Sinteze și aplicații, ediția a II-a,
revăzută și adăugită (Universul Juridic Publishing House, București, 2015);
 Benoît Jeanneau, Les règles et principes non écrits en droit public, sous la direction de Pierre Avril et Michel
Verpeaux (Panthon Assas Publishing House, Paris, 2000;
 Dan Claudiu Dănişor, Ion Dogaru, Gheorghe Dănişor, Teoria generală a dreptului C. H. Beck Publishing
House, Bucharest, 2006);
 Elena Emilia Ştefan, The role of the Ombudsman in improving the activity of the public administration (Public
Law Review no.3/2014, pag.127-135);
 Elena Emilia Ștefan, Opinions on the right to nondiscrimination (CKS e-Book 2015, pag. 540-544);
 Franck Moderne, Légitimité des principes généraux et théorie du droit (Revue Française de Droit
Administratif no. 15(4)/1999);
 Gheorghe Mihai, Fundamentele dreptului, vol. I – II (All Beck Publishing House, Bucharest, 2003);
 Gheorghe Mihai, Fundamentele dreptului. Teoria izvoarelor dreptului obiectiv, vol. III (All Beck Publishing
House, Bucharest, 2004);
 Gheorghe Mihai, Fundamentele dreptului. Teoria răspunderii juridice, vol. V (C. H. Beck Publishing House,
Bucharest, 2006);
 Gheorghe Mihai, Natura dreptului: ştiinţă sau artă? (Studii de Drept Românesc, year 12 (45), no. 1-2/2000);
 Gheorghe Mihai, Despre principii în drept (Studii de Drept Românesc, year 19 (43), no. 3-4/1998, pag. 273-285);
 Grigore Geamănu, Principiile fundamentale ale dreptului internaţional contemporan (Edit. Didactică şi
Pedagogică Publishing House, Bucharest, 1967);
 Ioan Ceterchi, Ion Craiovan, Introducere în teoria generală a dreptului (All Publishing House, Bucharest);
 Ion Craiovan, Tratat de teoria generală a dreptului (Universul Juridic Publishing House, Bucharest, 2007);
 Jean - Louis Bergel, Méthodes du droit. Théorie générale du droit, 2nd edition (Dalloz Publishing House, 1989);
 Laura-Cristiana Spătaru-Negură, Old and New Legal Typologies (CKS e-Book 2014);
 Laura-Cristiana Spătaru-Negură, Some Aspects Regarding Translation Divergences Between the Authentic
Texts of the European Union (CKS e-Book 2014);
 Mircea Djuvara, Teoria generală a dreptului (Enciclopedie juridică) (All Publishing House, Bucharest, 1995);
 Philippe Jestaz, Principes généraux, adages et sources du droit en droit français (Les principes généraux du
droit, Droit français, Droits de pays arabes, droit musulman, Bruylant Bruxelles, 2005);
 Roxana-Mariana Popescu, Introducere în dreptul Uniunii Europene (Universul Juridic Publishing House,
București);
 Sélim Jahel, Les principes généraux du droit dans les systèmes arabo-musulmans au regard de la technique
juridique contemporane (Les principes généraux du droit, Droit français, Droits de pays arabes, droit
musulman, Bruylant Bruxelles, 2005);
 Sofia Popescu, Principiile generale ale dreptului, din nou în atenţie (Studii de Drept Românesc, year 12 (45),
no. 1-2/2000).

38
Gheorghe Mihai, Fundamentele dreptului, vol. I - II, All Beck Publishing House, Bucharest, 2003, pag. 250.
39
Philippe Jestaz, Principes généraux, adages et sources du droit en droit français, in Les principes généraux du droit, Droit français,
Droits de pays arabes, droit musulman, Bruylant Bruxelles, 2005, pag. 171.
40
Sélim Jahel, Les principes généraux du droit dans les systèmes arabo-musulmans au regard de la technique juridique contemporane, in
Les principes généraux du droit, Droit français, Droits de pays arabes, droit musulman, Bruylant Bruxelles, 2005, pag. 29-46.
41
Apud Ioan Ceterchi, Ion Craiovan, Introducere în teoria generală a dreptului, All Publishing House, Bucharest, 1992, pag. 5.