General_principles_of_French_law
In French law, judges cannot create legal norms, because of the principle known as "la prohibition des arrêts de règlement" of Article 5 of the French civil code: "Judges are forbidden from pronouncing in a generally dispositive and regulatory fashion on the matters submitted to them." They can only put into evidence and interpret existing norms. This general principle underlies the state of existing law, which is merely uncovered by the judge.
The general principles of law, principes généraux du droit, PGD are rules of universal scope which:
- apply even when unwritten;
- are uncovered through case law;
- are not created but "discovered" by the judge, based on the state of law and society at a given point in time.[1]
The Court of Justice of the European Union also recognizes general principles of law in European Union law. In international law, "general principles of law recognized by civilized nations" are considered a source of law under Article 38.1 (c) of the statute governing the International Court of Justice.[2][3]
Traditionally, the general principles of law have a very minor role in civil law, which is essentially codified, and a much larger role in administrative law, which is largely based on case law,[4] since for a very long time, very few texts of general scope covered all, or even most, administrative activities.
These general principles, and particularly their judicial interpretation, have been debated in legal theory. The expression "general principles of law" was consecrated after the Liberation of France by an arrêt[5] about the rights of defendants. (principe des droits de la défense)[6] The Tribunal des conflits cited this principle, in its decision of 8 February 1873, titled Dugave et Bransiet.[7]