PRINCIPLES OF LAW: RETHINKING NECESSITY

Abstract

The relevance of the article is stipulated by the necessity to rethink the basic law category – the principles of law, which are still perceived as declarations, as fundamental basis that do not directly regulate public relations and to which normativity is not inherent. The implementation of Western legal concepts, the provisions of the natural understanding of law increase the relevance of the study and are factors in the necessity to change the paradigm of law principles understanding. The purpose of the study is to focus the attention of domestic scholars in the field of law on the necessity to rethink such a phenomenon as law principles and to identify those features that reflect the essence of this phenomenon. It is noted that within the natural school of law, law principles cannot be assigned an optional role in the social relations regulation; principles of law are a form of law. It is substantiated that it is illogical to define law principles as the fundamental principles determining the content and direction of law system and at the same time make them dependent on the provisions of regulations and not to endow them with regulatory functions, not to endow them with normativity. It is emphasized that the European Court of Human Rights has repeatedly emphasized in its decisions (including decisions on complaints against Ukraine) that when the law does not meet the “quality of the law”, does not comply with the rule of law, the European Court of Human Rights does not consider restriction of human rights as such, which was carried out in accordance with the law. Thus, in fact, the law does not become normative, it remains only a prescription that does not regulate public relations. And this indicates the direct effect of the rule of law principle. It is argued that law enforcement agencies should be guided by the principles of law, especially in case of contradiction between the principles of law and legal norms. It is noted that the link of the principles of law with the rule of law in society can be traced through the connection of law with public relations, which is clearly reflected in sociological and historical approaches to law understanding. It is summarized that there is a necessity to rethink the understanding of specialized rules of law in the context of distinguishing of norms and principles as their separate type, especially in a situation where legal science distinguishes between the principles of law and norms of law.