General Principles of Law in International Law and Common Law

Article 38(1)(c) of the Statute of the International Court of Justice directs the Court to apply, in addition to international conventions and customary international law, “the general principles of law recognized by civilized nations”. We may find it surprising that, when the provision was originally drafted, it was an English judge, Lord Phillimore, who was responsible for this resort to general principles. The traditional common law method applied by English judges has been to approach legal problems not from the level of principle but from the other direction: to start with specific instances rather than general principles. But in the common law, too, the need arises to resort to general principles as a means of supplementing other sources of law. Although the role that general principles perform in international law and in the common law differs greatly, there is a common unifying thread. There are certain general principles of law which, however they are arrived at and whether or not they are a point of departure in legal reasoning, are an essential part of every legal system worthy of the name.