The General Clause: A Measure of Universalizing the Content of Law or An Expression of its Diversity? On ‘Public Interest’ and ‘Public Moral’ Clauses
Loading...
The General Clause A measure of Universalizing the Content of Law or An Expression of its Diversity.pdf (96.09 KB)
Authors
Date
2011
Journal Title
Journal ISSN
Volume Title
Publisher
Peter Lang
Abstract
A general clause can be described as a legislative construct that allows the application of various legally undeĕned criteria and values in a legal decision. ćese criteria and values are determined axiologically and come from outside the legal system, though they are oęen contained in statutory provisions. In cases involving general clauses the role of the court is to take into account such values and to apply them in an individual and concrete process of law-application. će main aim of this paper is to answer the question whether general clauses are a tool for universalizing the content of case law in the times of European integration and globalization or rather an expression of local (regional) values. će paper argues that for supra- and international courts the case is and should be the latter. će argument is illustrated by judgments and decisions of the Polish, European and international courts concerning general clauses of ‘public morals’ and ‘public interest’.
Description
Keywords
Citation
w: Legal and Political Theory in the Post-National Age – Central and Eastern European Forum for Legal, Political, and Social Theory Yearbook, Frankfurt am Main 2011, Peter Lang, s. 147-158;