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The Use of Unwritten Legal Principles by Courts *
Author(s) -
HOECKE MARK VAN
Publication year - 1995
Publication title -
ratio juris
Language(s) - English
Resource type - Journals
SCImago Journal Rank - 0.344
H-Index - 10
eISSN - 1467-9337
pISSN - 0952-1917
DOI - 10.1111/j.1467-9337.1995.tb00212.x
Subject(s) - ideology , law , coherence (philosophical gambling strategy) , order (exchange) , legal research , political science , politics , element (criminal law) , legal realism , legal profession , sociology , law and economics , completeness (order theory) , epistemology , philosophy , business , mathematics , statistics , finance , mathematical analysis
. I argue that one can distinguish two types of unwritten legal principles as applied by courts (in Europe). On the one hand, what are called “structural principles,” which are induced, or at least pretended to be induced, from the written law. On the other hand, what are called “ideological principles,” which are not induced from the actual legal system, but refer to current dominant beliefs in society as to morals, politics or other non legal ideologies. It is argued that the distinction between structural legal principles and ideological legal principles could be an important element for the elaboration of a legal principle theory, as both these types of principles meet a different need and play a different role in legal practice. Structural legal principles primarily meet the need for a new ius commune , in order to achieve the coherence and the completeness of the legal system, whereas ideological legal principles, just like the human rights, meet a revived demand for an ethical framework for the law.