Extract
[...] It follows that the legislator is competent to intervene by adopting a law that contradicts a general principle of law established by the judge. However, in the absence of a clear law that derogates from a general principle of law, the latter imposes itself on the administration regardless of the authority it is vested in, starting with the President of the Republic, the Prime Minister, and the ministers. Thus, all these administrative authorities must respect, in the issuance of administrative acts, principles that the administrative judge has elevated to the level of general principles of law. [...]
[...] As for the general principles of law, their ignorance by the administration constitutes a violation of an unwritten source of legality that exposes its author to a sanction by the administrative judge. The unwritten nature of these principles has no influence on the sanction incurred, in the sense that, when the judge notes their violation, he can pronounce the annulment of the act, in the same way as if he had violated a constitutional provision. This annulment can be based on external or internal legality. [...]
[...] It is necessary to acknowledge, first of all, that in the current state of the law, the general principles of law are an integral part of the block of legality and to specify, secondly, that these principles are derived from existing law (II). The general principles of law as elements of the block of legality It is a matter of demonstrating the place of the general principles of law in the block of legality in a state of law that claims a hierarchy of norms. These principles cannot, in any case, compete with the law, expression of the general will. [...]
[...] Recourse to general principles of law in administrative jurisprudence The general principles of law are "unwritten principles identified by judges from the French legal tradition"1. Their appearance was a reaction to the threats to public liberties during the Second World War. It is therefore not surprising that the administrative judge established in 1944, in the Aramu decision, a general principle of law based on the theory of the liberal state, namely the right to defense. These principles of praetorian origin came to complete a long movement concerned with breaking with a tradition based on the impunity of the administration that ignores the spirit of the laws in force. [...]
[...] They are, as the judge has often recalled, principles "discovered" by him on the occasion of a dispute and which emerge from a certain reading of the rules of law. It is, moreover, this textual basis that gives the general principles of law all their force and founds their legitimacy. It is now admitted that the judge is the guardian of legality. He has been able, thanks to his creative power, to develop a genuine theory of general principles of law of liberal inspiration that impose themselves on the administration. [...]
