Legislating Extra-Legal References: Naming the Criteria and Placing the Clauses (Polish and European Perspective)

Abstract

The aim of the study is the analysis of the role of legislating the extra-legal references in the form of general clauses in the statutory legal orders. The main features of legislative policy determine that it is in principle rational activity despite the fact that the objectives of the reference are not fully transparent. Although the clauses refer in a controlled and point-based manner to extra-legal values, in fact they extend the scope of judicial discretion, which allows for a departure in the processes of judicial application of the law from legislative intentions and expectations. Legislators of both in Polish and other European legal orders try to determine the functions of general clauses by giving appropriate names to the criteria of general clauses, by locating clauses in appropriate segments of the legal system and normative act as well as by defining the conditions for the application of clauses in a particular decisional process. The shape of all these activities depends on various factors. The most essential role among them is played however by the type of political system in which the clauses are created and of which properties determine the way of use of the clauses by the courts in processes of application of law.