Some allocation issues of the principles of uncodified branches of law
- DOI
- 10.5922/sikbfu-2022-4-1
- Pages
- 5-15
Abstract
The principles of law are considered within the positivist legal understanding as the normatively fixed fundamental concept of each industry. The general legal principles enshrined in the Constitution of the Russian Federation are thought to directly apply both in codified and uncodified industries, regardless of whether they are duplicated in industry legislation or not. The article highlights a number of problems related to the allocation of the principles of uncodified branches of law. Firstly, it is rather unclear whether a particular legal entity is a specific branch of law or not. This is particularly difficult in the case of uncodified branches of law. Secondly, some of the criteria for recognising legal principles that are characteristic of codified branches of law do not work when identifying the principles of uncodified branches of law. Thirdly, sectoral principles in codified branches of law are enshrined only in the Constitution of the Russian Federation and/or sectoral codes. In uncodified branches the source of enshrining the principles of law is the Constitution of the Russian Federation and branch uncodified legislation that is a set of normative legal acts. In this situation the problem arises whether any normative legal act can enshrine the principles of the corresponding branch or only in some basic act which replaces the codified act? Finally, if the author accepts the possibility of principles of law being enshrined in different normative acts, the problem arises of the hierarchy and correlation of principles from different normative acts. The article outlines the ways to solve these challenges.