ACTA JURIDICA - A MTA Jogtudományi Közleményei Tom. 6 (1964)

1964 / 1-2. sz. - HERCZEGH G.: The General Principles of Law Recognized by Civilized Nations

2 Cr. Herczegh whether we may speak of the general principles of law within the sources of international law, hut some authors contest the very existence of such generally recognized principles of law. Even those who recognize the existence of such general principles, cannot agree on the question whether the principles of law referred to in Article 38 of the Statute mean the fundamental principles of international law, or the principles of national law and particularly those of civil law. The scientific discussion about the general principles of law was consid­erably animated and extended by the effort to make effective the democratic progressive elements of international law. This explains according to Professor Koretski2 the interest shown by Socialist jurists in the problem of the general principles of law. This is a much discussed, central problem of international jurisprudence and in Hungary, too, as in the Soviet Union, the interpretation is connected with the examination of the democratic and progressive character of the general principles of law. This circumstance has increased the importance of such researches but made at the same time the issue more complicated. All true problems reflect, like in a drop the whole sea, the entire system of the relevant branch of law. The examination of the general principles of law in international law indirectly or directly affects the question of sover­eignty, of the legal capacity, of the relation between international law and national law, and this leads to the great opposition existing between the positivist conception and the conception of natural law. Accordingly, it is a critical point which enables to survey the construction of international law, and its characteristics of which become sharply defined. II. 1. Most works dealing with the role of the general principles of law rely on Article 38 of the Statute of the Permanent Court of International Justice and of the International Court of Justice respectively, which enumerates the various types of rules to be applied by the Court. The Statute is the most important among the positive rules of law connected with international juris­diction. It sums up and comprises the results of the former evolution and serves as a model for many international conventions and drafts. Accord­ingly, in the interest of the elucidation of the problem of the general principles of law we have first of all to analyze the text of Article 38 of the Statute. The text of the Article in question is as follows: "The Court shall apply — 2 V. M. KORETSKI, Principiile generale ale dreptului ín dreptul international, Justitia Noua, 1957. No. 4.

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