Principiile fundamentale, un ”dat” al dreptului
The Fundamental Principles, a ”Given” in The Field of The Law

Author(s): Elena Anghel
Subject(s): Philosophy of Law, Sociology of Law
Published by: Universul Juridic
Keywords: Principles; Given; Constructed; Spirit of Law;
Summary/Abstract: In its grand historical-spatial diversity, the law presents a permanent nature represented by a bunch of constants. The principles, in terms of ontology, give meaning to the law from the beginning of the society, namely before being discovered and worded by the law science. They substantiate law as a ”given” and guide the lawmaker in the construction of positive law. As the principles are the bases of the positive law, the values are crystallized, enshrined and protect by rules of law. Law must carry within equilibrium between the letter and spirit of laws. The entire official legislation, instituted by the state, in other words “the letter of the law”, must be went through by the “spirit” of law’s principles. The fundamental principles constitute reference points for the legislator, as well as for the practitioner, in the process of elaborating and applying the norms of positive law. Provided in the Constitution, they assume the function of harmonizing the positive law system and orientate the ordinary legislator’s will, being situated above its spirit. The legislator has the purpose only of discovering the spirit of the law and of formulating the principles, transforming the given of the law into the constructed. We all agree that the principles ensure the unity, cohesion, balance and development of the legal system. But are the principles formal sources of law? If we agree that they are exterior to the positive juridical order, what is hiding behind the principles of law? We are aware that behind law and jurisprudence exist institutions and people; behind doctrine, savants and law schools; behind common law lays the entire society; How about behind law’s principles? This is what I will try to find out in the present study.

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