Legal principles act as regulatory sources in many legal systems. The most common of them are the provisions on equality, reasonableness, good faith, justice. The Russian Federation also lays them in its constitutional system . The principles of international law, in turn, act as generally accepted provisions that are binding on all countries.
Ratio problem
As sources, the principles of Russian law are enshrined in law. In such a situation, they have a normative value. In this regard, a problem arises in the correlation of legal acts and principles as their sources. It also appears due to the fact that the consideration of the provisions on which the entire legal model is based is carried out very ambiguously in the literature. There is no consensus on their list. In addition, their clear concept is missing. The principles of Russian law by some experts are perceived as something higher, standing above the institution of norms. Other authors point to the conditionality of the content of the acts. They emphasize that the fundamental principles of Russian law are developed by the practice of normative regulation of relations in society. Often emerging issues and problems are interpreted extremely subjectively.
Pre-revolutionary state of the system
Before the reform of 1864, the court, revealing in the law ambiguity or incompleteness, had to transfer the materials of the case to a higher court. As a result, the dispute passed from one organ to another, red tape arose until the State Council took up the conflict. He expressed his own opinion and submitted it to the monarch for approval. The Judicial Statutes adopted by Alexander II put an end to this. They instructed the authorities not to suspend the proceedings because of a contradiction or incompleteness of the rules, but to allow them in accordance with a common understanding of all legislation.
Soviet period
In the years of the USSR, a narrow regulatory interpretation of legislation prevailed. Moreover, the principles of Russian civil law did not have basic status in a formal sense. However, their importance was noted in revealing the nature of norms, their ideological foundation, etc. The basic principles of Russian law and the meaning of legislative provisions were taken as a basis for resolving disputes by analogy. Meanwhile, such formulas received a fundamentally different meaning than it was in other states of the Romano-Germanic legal model. After all, both the meaning of legislation and the principles of Russian law had to be sought in the rules themselves, and not in the "abstract idea". However, indirectly, the doctrine recognized that these basic provisions went beyond the normative level. A division was made into the principles of law and legal principles.
Situation today
The approach that existed in Soviet times was continued in the literature used today. In particular, in the textbook of 2003, published under the editorship of prof. Treushnikova, in the section on the sources of procedural law the following is indicated. If necessary, use the analogy of the law, that is, apply the principles of Russian law in the administration of justice, the Supreme Court interprets the essence of these provisions. It should be borne in mind that they act as the highest ideas enshrined in the norms. Consequently, the Supreme Court gives an interpretation of legal acts.
The opinions of lawyers
It should be noted that, considering the principles of the Russian legal system , many experts proceed from the fact that the interpretation existing in advanced mills is acceptable for the Russian Federation. Despite the fact that the provisions are not always clearly expressed, in the context of reform and a certain lag of the doctrine from social needs, they could be used as tools for its correction. Thus, the principles of Russian civil law could ensure the submission of the doctrine to the dictates of justice. An interesting opinion is expressed by Vedyakhin. He points out that, recognizing the general improvement of various legal doctrines in modern conditions, it can be stated that the principles could act as more significant sources than they are now. They would orient society to such values as freedom, equality, justice. On this occasion, Martyshin notes that, together with norms, the fundamental principles of law are becoming increasingly important . The Russian legal system is characterized by formalization of provisions. For example, in Art. 15 part 4 of the Constitution states that universally recognized norms and agreements concluded by the Russian Federation with other states are part of the domestic doctrine. This allows the law to apply the principles as an independent source of law.
The impact of globalization
Today, the principles of law are considered universally recognized sources in the field of regulation of relations in the world arena. This has been greatly facilitated by globalization. It covered almost all states, and penetrated into the most remote regions of the planet. Today it is difficult to find a state in which nothing is known about human rights, international justice, democratic freedom, etc. Globalization involves increasing the transparency of borders between different political, economic, and national structures. This, in turn, is determined by the need to develop more or less general rules in the global market. In this regard, national legal systems are internationalizing, drawing closer together. This contributes to the unification of some legal institutions, industries and legislation in general. Internationalization occurs through acculturation and reception, the rapprochement of different models through standardization of norms. The development of the principles of international law is carried out under the influence of legal science. As a rule, the preparation of important documents (agreements between countries, etc.) is guided by the studies of the most respected theoreticians.
Constitutional provisions
Among international legal factors influencing the formation of a universally recognized doctrine, national legal systems are of particular importance. They enshrined democratic, humanistic foundations and relevant standards. Constitutional law contributes to their transformation into specific industries. Often, fundamental provisions are enshrined in the laws of the most advanced states. Only after a while and often not without outside help are they fixed in the norms of other countries. As a result, there is a constructive mutual penetration of progressive ideas, institutions, tools, mechanisms of constitutional and international law and sectoral legislation of different states. In this process, a definite global ideal will crystallize out more clearly. Today, most scholars recognize the trend toward convergence of national legal systems. This indicates the acceleration of the creation of a universal legal model.
Features
At present, the international legal system is broadly characterized as a special institution, which includes the principles and norms governing relations between entities. The key provisions that form the foundation are those that are recognized by most countries, have global significance and a fairly wide range of actions. Particular attention is paid to the principles in the European Charter of 1961, revised in 1996. When signing this document, the Parties recognized as the goal of their policy the achievement of conditions under which certain regulatory provisions could be effectively implemented.
Hot issues
The constant expansion of the scope of application of the norms and principles of international law acts as an objective regularity of the progress of civilization. In this regard, today, along with traditional foreign economic and political relations, disarmament issues, and the preservation of peace on the planet, other issues are being discussed. In general, they form the phenomenon of "globalization" mentioned above. The most urgent issues are those related to the directions of development of mankind, united by a combination of political, economic, climatic and spiritual needs. Among them, in particular, can be called the internationalization of the economic system, the formation of a worldwide market model, an increase in the number of multinational companies, nature conservation, the fight against terrorism, and so on. Separately, it is necessary to say about the need to create a mechanism of judicial and other control and protection of individual freedoms and rights. It is quite obvious that these problems should be solved using universally recognized norms, and through them - with the help of domestic legislation. This once again emphasizes the increasing importance of world doctrine and the growth of its influence on the development of principles in Russian law.
Practical use
Since the 50s. of the last century, the principles of law in Western Europe are formed under the influence of integration processes that took place within the EU. So, for example, in the practice of the ECHR, a special term has appeared. It was formulated during the functioning of the European Union of Steel and Coal. The concept of "general principles specific to the law of member countries" was enshrined in the Agreement on the Establishment of the Community. In accordance with Art. 215 (2), with non-contractual liability, the EU compensates for losses incurred by its institutions or employees in the process of fulfilling their duties, in accordance with provisions specific to the laws of the participating States. This principle is considered as an integral component of the legal system of the European Community. Violation of the provision is the basis for the repeal of EU acts in a judicial proceeding. The activities of the ECHR, in turn, are based on universally recognized principles. Such an important role of these provisions is determined by their direct connection with human freedoms. According to the ECHR, reflected in some decisions, the constitutional traditions of the member countries of the Community, the European Convention, as well as other normative acts of world significance, act as sources of formation of principles.
Axioms
Often they act as general principles of Russian law . So, for example, it was established that it is not possible to sue twice in one case; when considering a dispute, the decision should not harm third parties. Such principles of Russian law as, for example, the equality of all before the law, equal access to legal proceedings are also considered axioms. Equally important and basic is the provision on the fairness of the proceedings. It is worth saying that a study of the normative acts used in the world shows that, as a rule, the difference between fundamental principles and axioms is not indicated.
Controversial issues
The analysis reveals a different interpretation of the concept of universally recognized principles of international law in Soviet and Western European legal science. In the West, they are primarily the basic provisions of national legislation that are accepted in the world. In the USSR, this concept embraced principles that were common to socialist and bourgeois law. This led to the formation of the foundation for the peaceful coexistence of social structures that contradict each other. Decision of the Plenum of the Armed Forces No. 5 from 10 October. 2003, explaining the rules of application in courts of general jurisdiction of the norms and principles of international law, as well as agreements between the Russian Federation and other states, it was established that universally recognized provisions should be understood as peremptory postulates adopted by the international community, derogation from which is not allowed. These include, in particular, prescriptions regarding respect for human freedoms, the conscientious fulfillment of obligations stipulated in intergovernmental agreements. A generally accepted norm is defined as a rule of conduct. It is accepted and recognized by the community of countries as a whole and is enshrined as legally binding. However, as experts note, these formulations do not allow to differentiate norms and principles.
Conclusion
In the domestic doctrine, the question of the interpretation of the concept of generally recognized provisions remains open at present. Despite this, the fundamental principles of Russian law are considered stable categories, officially enshrined in various regulations. They are used in various legal sectors. The most widespread principles of Russian law were in legal proceedings. The law establishes that decisions in a case must be reasonable, legal, fair. Participants in the process are vested with equal rights, bear responsibilities. The principles of law in the most general form are expressed in the Constitution. In accordance with it, fundamental provisions are specified in existing codes. The principles of domestic law are the basis of the mechanisms governing social relations in various fields.