Grundsatz und Norm in der richterlichen Fortbildung des Privatrechts

»Principles of law,« »general principles of law,« »guiding ideas,« and so-called »general ideas of law« are among those words with which doctrine and practice constantly argue, without ever accounting for their manifold meanings and scope, or even attempting to clarify their origins and functions. In the absence of such control, such elementary terms are usually used for the most diverse tasks, they are overburdened, exploited as emergency helpers and panaceas, and accordingly judged very contradictorily.
Josef Esser discusses this and illustrates it by the preceding topic. For the notion of »independently« effective legal principles, general principles of law, or, however, legal ideas of a law requires just as much clarification as the belief in the automatic »effect« of autocratic fictions of law. Here as there, lack of distinction leads to hasty prejudices.