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"It's not just a matter of principles": The use and application of general principles of law as part of the Honduran legal system in the merits of a dispute
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"Every legal system has fundamental principles that inspire, inform, and shape its norms. They are the principles (etymologically derived from the Latin principium) that, evoking the first causes, sources, or origins of norms and rules, confer cohesion, coherence, and legitimacy to legal norms and the legal system as a whole. They are the general principles of law (prima principia) that give the legal system (both national and international) its ineluctable axiological dimension; they reveal the values that inspire the entire legal system and, ultimately, provide its own foundations […]"
[/vc_column_text][us_separator size="small"][vc_column_text]The above quote comes from one of the abundant and always substantial dissenting opinions or reasoned opinions of Brazilian judge Antonio Augusto Cançado Trindade. This paragraph illustrates the meaning of the existence or telos of principles in a legal system since, without them, without that original source, there is no legal system. The use of these principles in specific cases may vary. They are normally used to illustrate, clarify the meaning, or delimit the scope of a particular legal norm that is to be applied to a specific circumstance. It is naive to think that the Law can cover absolutely all the assumptions and aspects presented by a case, situation, or circumstance with legal consequences, much less taking into account how the world has changed and evolved since the publication of basic laws such as the Civil Code or the Commercial Code. On the other hand, it is no coincidence that, in a Contract, the parties are free to negotiate its content in a manner that best suits the business they are developing, as stated in Article 1547 of the Civil Code, since, in this way, the Law applicable to the Contract serves as a secondary source in relation to what is not regulated therein. However, when an attempt is made to use more abstract legal figures with the purpose of granting it an imperative character and having a Court, whether of ordinary justice or arbitration, apply it, positions may arise between the parties in conflict that undoubtedly lead to a more detailed analysis of the use and application of general legal principles, equating them with imperativeness as a positive legal norm. It would be desirable for the Honduran legal system to include, for example, a provision such as that contained in Article 19 of the Federal Civil Code of Mexico, which establishes the following:
Civil disputes must be resolved in accordance with the letter of the law or its legal interpretation. In the absence of a law, they shall be resolved in accordance with the general principles of law.
[/vc_column_text][us_separator][vc_column_text]However, except in labor matters—as we will see later—we do not have a similar rule. This does not prevent, in our opinion, that, by making an analogical interpretation and construction, we can reach a conclusion that is equivalent to the aforementioned article. For such purposes, we outline some arguments below. First, it is important to note that our legal system already recognizes and incorporates some general principles of law and gives them mandatory character. For example, we find the principle of good faith contained in Article 1546, which establishes that [t]he contracts must be executed in good faith […]. Similarly, the principle of pacta sunt servanda can be appreciated in Article 1368 of the same Code, which establishes that [t]he obligations arising from contracts have the force of law between the contracting parties and must be fulfilled in accordance with the terms thereof. The term "rebus sic stantibus" finds its place in Honduran law in Article 757 of the Commercial Code. Likewise, some legal regimes that constitute more of a lex specialis incorporate principles. Thus, we find that Article 3 of the Law on the Promotion of Public-Private Partnerships establishes the principles to which contracts entered into under that law must be subject. The Tax Code, the State Contracting Law, or procedural rules such as the Code of Civil Procedure incorporate principles that regulate and give meaning to the subject matter they regulate. This initial approximation allows us to unequivocally state that the national legal system recognizes and incorporates general principles of law and positivizes them. But what about principles whose legal relevance cannot necessarily be easily, clearly, and precisely established? How can we require a court to apply a principle presented in an argument to a specific case? To do so, we can rely on analogical interpretation. In the absence of an express provision such as that of the Federal Civil Code of Mexico, the rules of interpretation of the law are relevant. In general terms, the Civil Code of Honduras regulates these rules of interpretation from Articles 17 to 20. For the purposes of this article, the provisions of Articles 19 and 20 seem even more relevant, which establish the following:
Article 19.- The context of the law will serve to illustrate the meaning of each of its parts, so that there is due correspondence and harmony between them all.
Obscure passages in one law may be illustrated by other laws, particularly if they deal with the same subject.
Article 20.- In cases where the previous rules cannot be applied, obscure or contradictory passages shall be interpreted in the manner that seems most in accordance with the general spirit of the legislation and natural equity.
[/vc_column_text][us_separator][vc_column_text]In a Roman-Germanic civil law system, perhaps speaking of abstract ideas such as correspondence, harmony, the general spirit of legislation, and natural equity might seem to belong more to the realm of dreams. However, as we can see, they are contained in a current legal norm. This circumstance allows us to construct an expansive interpretation that leads a Court to take into account a general principle of law for its application to a specific case. Furthermore, from the cited articles, the idea emerges that laws, even if they are lex specialis, do not constitute an autonomous regime, but rather converge in a system of law that relates and interacts with each other. Article 305 of the Constitution of the Republic establishes that judges and magistrates cannot fail to judge under the pretext of silence or obscurity of the laws. In this same sense, the second paragraph of article 9 of the Law on the Organization and Powers of the Courts regulates that:[/vc_column_text][us_separator][vc_column_text]
Once their intervention is legally requested and in matters within their jurisdiction, they may not excuse themselves from exercising their authority, even in the absence of a law resolving the dispute submitted to their decision.
[/vc_column_text][us_separator][vc_column_text]If we stick to the definition of Law described in Article 1 of the Civil Code, there is no doubt that the aforementioned articles refer to an absence or lack of positive law applicable to the disputed facts of a case. According to the aforementioned provisions, if a Judicial or -mutatis mutandis- Arbitration Court is asked to resolve a conflict, even when there is no specific provision applicable to the set of facts or to a specific fact of a case, it may not fail to resolve it in the absence of said legal norm. This, we could argue, is similar to Article 19 of the Federal Civil Code of Mexico. On the other hand, depending on the general circumstances and the specific case, we could make an even broader interpretation by using the second paragraph of Article 19 of the Civil Code. Despite establishing that an interpretation of an obscure passage of a law may be made through other laws, particularly if they deal with the same subject matter—and that it should not be taken as a restrictive rule—it should not be strange, nor prohibitive, to use case law and doctrine, as permitted by Article 18 of the Labor Code, in a case involving another subject. Doctrine can also be very useful in explaining the scope, practice, and application of a legal provision, or even the principles themselves, and thus provide a line of argument in a case with greater meaning, certainty, and support. Thus, returning to the first lines of this analysis, the general principles of law, such as those that constitute the substratum of the domestic—and international—legal body, can and should be applied by the competent judicial or arbitral body to resolve a case if the parties resort to them, or if the Court has the capacity to decide based on the principle of iura novit curia. In this way, principles that are perhaps not very common may prove useful and ultimately be applied because, in a broad interpretation, they would constitute elements that would provide the law with due correspondence and harmony in the sense of Article 19 of the Civil Code, or they adhere to the general spirit of the legislation and natural equity, in accordance with Article 20 of the Civil Code of Honduras. These basic guidelines allow us to conclude that, in the absence of a legal norm applicable to a case, judicial or arbitral tribunals must make use of the general principles of law that the parties may present in their arguments for the timely resolution of the case. If you would like to learn more about this topic, you can contactfvilleda@lexincorp.com[/vc_column_text][us_separator][vc_column_text]
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[/vc_column_text][us_person image=”7713″ name=”Fabián Villeda ” role=”Asociado” link=”url:http%3A%2F%2Flexincorp.com%2Fequipo_honduras%2Ffabian-villeda%2F|title:Fabi%C3%A1n%20Villeda||” layout=”cards” img_size=”full”][/us_person][/vc_column][/vc_row]
