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13 Am. J. Comp. L. 1 (1964)
General Principles of Law: Their Elaboration in the Court of Justice of the European Communities

handle is hein.journals/amcomp13 and id is 11 raw text is: WERNER LORENZ General Principles of Law: Their Elaboration in the Court of Justice of the European Communities 1. SOME INTRODUCTORY CONSIDERATIONS OF THE PRACTICAL SIGNIFICANCE OF GENERAL PRINCIPLES OF LAW 1. It is a well-known phenomenon that even modern private law codifications, in spite of their closely knit network of legal rules, contain references to the general principles of law by which the judge is to be guided if the code is silent. Thus the Austrian Civil Code of 1811 authorizes the judge to decide the case before him on the basis of the principles of natural law (nah den natiirlichen Rechtsgrund- siizen), if neither the wording nor the analogy of a Code provision throw some light on the problem and its correct solution.1 The Spanish Codigo Civil of 1888 refers the court to the general principles of law (los principios generales del derecho),' whereas the Egyptian Civil Code of 1948, in the absence of a provision of a law that is applicable, takes recourse first to custom and the principles of Moslem Law. If no such specific principles can be found, the judge will apply the principles of natural justice and the rules of equity.' These few examples, to which others might easily be added, show that we are not confronted with a problem peculiar to a legal system of one particular type, for the code provisions were drawn from the laws of countries stemming from different legal families (Rechts- kreise). Whatever the intentions of the various legislators may have been when referring their courts to such subsidiary sources of private law, we can conclude from these passages that the problem of filling gaps in the written law is a universal one. It is not confined to private law relations within a given municipal system of law. On the contrary, the problem gains an even greater significance when international disputes are to be decided. 2. Leaving aside for the moment the traditional conflict-of-laws approach which leads to the application of a national legal system, i.e. WERNE-R LORENZ is Professor of Comparative Law, University of Wiirzburg, Germany. 1 Austrian Civil Code § 7. See also F. E. von Zeiller, Commentar jiber das allgemeine biirgerliche Gesetzbuch, vol. 1 (1811) § 7 note 4, at p. 65; von Zeiller, who was one of the principal framers of the Austrian Civil Code, points out that this passage is meant to be a reference to the philosophy of law, i.e. natural law. 2 Spanish Civil Code Art. 6 (2). •Egyptian Civil Code Art. 1 (2). English translation by Perrott, Fanner and Sims Marshall.

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