Sources of Law

Sources of Law

Primary Sources
1. Legislation
  1. Legislation is accessible to all: it is the best tool for state intervention, reform and unification. Here, we refer to legislation = loi = lex = ius. The law appears in quality more than quantity.
  2. The Constitution
    1. Constitutions are at the top of the hierarchy of legal norms. They are concerned with fundamental rights, freedoms and liberties.
    2. Controls of constitutionality vary considerably. Countries may have them in theory and ignore its use (Norway). Control may be trusted to a political body, or to a special court (France). Control may be purely a priori, or both a priori and a posteriori (France).
    3. 1958: CC created under V Republic
      1. 1971: CC used to defend the rights of political associations
        1974: 60 members of either house can seize the CC
        2008: QPC mechanism introduced with double filter
  3. International Treaties
    1. EITHER inferior to domestic law (England), OR equal to domestic law (Germany) OR superior to domestic law (France)
    2. France applies (1) the law of the European Union which prevails over domestic law, and (2) the European Convention of Human Rights whose jurisprudence has increasing effect in France
  4. Statutes
    1. Legislative bodies may be limited in their legislative scope (France since 1958 to prevent congestion)
    2. Real codes are a well-organised, systematised, structured set of general principles from which general rules can be deduced. They are only changed with great caution and are supposed to have long durability.
    3. Some codes are merely compilations (the Code de consummation) which make a variety of statues more accessible. The Superior Commission for Codification (1989) seeks to organise all French law in this way.
    4. Regulations are also a kind of statute. They must be in conformity with existing statutes and can be issued by a number of bodies on a number of issues.
2. Customs
  1. Customs and usages are developed on a sociological basis and most legislation covers them. They are a reminder that legislation can never truly be exhaustive.
    1. Customs may be ignored by codified law (France) or may be explicitly recognised (Switzerland, Greece).
      1. The custom may (A) be secondary to the law (B) supplement the law where no solution is offered (C) may counterbalance or abrogate the law
        Customs are inferior to legislation as they provide facts, not law. Because of this, they are rarely applied by high level courts.
3. General principles
  1. General principles are referred to in a subsidiary way, but in reality they are at the heart of both legislation and judgement. They provide a firm foundation to the legal order.
    1. The principles come from: legal traditions (ie. Roman maxims), principles of morality and justice (ie. équité), social necessity (ie. monetary nominalism), inference from positive law (ie. fundamental principles).
      1. The judge 'discovers' these principles and determines their application in the specified case. The judge therefore has a large power of interpretation.
        Legal scholarship (la doctrine) however is not a source of law. It is merely a persuasive authority. Comments and criticisms may influence legislators, but scholars are not the creators or applicators of the law as it stands.
Secondary Sources
1. The judge's interpretation of the case at hand: interpretation of the rule
  1. Rules are not always clear: if they were there would never be any litigation. Art. 4 of the Code Civil obliges French judges to find a solution where the law provides none. Interpretation by the civil law judge is not mechanical by any means. The judge has several interpretation methods to choose from.
  2. Exegetic method
    1. 1. An interpretation to the letter of the law, a literal or grammatical reading
      1. 2. An interpretation based on the logic or reasoning of the law through analogy
        3. An interpretation based on the legislators' intentions, which can be subjective, psychological or even historical
        So ... we've already gone pretty far! But it doesn't stop there ...!
  3. Conceptual method
    1. Each legal concept is strictly defined within a larger system. This ensures absolute coherence.
      1. The concepts fit within larger categories, and eventually the whole system, like Russian dolls.
        Should a problem arise, you merely refer to the surrounding concepts for you to clarify where your solution lies.
        This method can lead to uncertainty as there is rarely agreement about the concepts in hand. Unity has often been broken and the certain definitions have lost favour with the courts
        This method can also be too rigid, so judges have had to cheat on definitions in order to avoid legal injustice. The human aspect of law fades into the background
    2. This method was popular in Germany because of its TENDENCY TOWARDS ABSTRACTION in the study of law, and also because of its HISTORICAL LACK OF UNITY.
  4. Modern methods that empower the judge
    1. Objective or teleological method
      1. Consider the purpose of the law (ratio legis) and apply it to today's circumstances. Treat the law as a living document with a firm aim in mind. "Through the Civil Code, but beyond."
        The legislator may encourage this (ie. Art. 6 French Civil Code; Generalklauseln in the BGB)
        The legislator may say nothing about this, but a body of case law may build based on these innovative interpretations (ie. the development of strict liability for things and acts of others).
        This is the creative power of the judge at its strongest, allowing him to almost completely distort the law.
    2. Free scientific research method
      1. When facing a gap in the law, the judge should recognise that he is not just 'filling' it, but actually creating new law. He should proceed as if he were the legislator, and no longer as a judge.
        FRANCE: the judge has always refused to openly admit his creative power for fear of being accused of being arbitrary
        ITALY: the Italian judge is bound by general principles of the legal order of the State, and not by general principles of the law
        GERMANY: the judge can either apply or discover the law
        SWITZERLAND: Art. 1 of the Civil Code is the fruition of this methodology
        SCANDINAVIA: Judges have always had considerable creative power but is reigned in by no more than general wisdom, so any solution provided could be supported by these ideas
2. The judge's interpretation of the rule: is case law a source of law?
  1. In theory
    1. In France, the rule is absolute and the judgement has no place in dictating a rule. Art.5 of the Civil Code prohibits the handing down of general principles. Referring purely to case law is not grounds for a motivated decision.
    2. In Germany, the decisions of the Constitutional Court are binding on all authorities and courts. Some decisions are given an increased authority and may only be put aside in special circumstances.
    3. In Spain, doctrina legal (7 or more similar decisions) is a form of binding jurisprudence. Where a case goes against this doctrine, it can be appealed against on those grounds.
  2. In practice
    1. Even without judicial authority, decisions can have persuasive authority. Judges who are not bound by precedents still tend to follow them regularly. Nobody can claim to know a law of the country without knowing the relevant case law too.
      1. There is a natural tendency to imitate. Lower courts want to follow the judgements of higher courts. Concerns for coherence and predictability influence this choice.
        The higher the court, the greater its persuasive authority. This is because its vocation is to promote unified coherent law.
        The more often the decision has been repeated, the greater its persuasive authority. This is because a large body of case law shows a consistent reasoning.
        The weaker the framework in the branch of law at hand, the greater its persuasive influence. Where legislation is clear, there is no need for case law to clarify its application.
        The more important, or conceptual, the decision laid down, the greater its persuasive influence. This is because such principles should be followed in the future.
    2. Some countries, under the influence of common law, tend to view case law as a source of law (Scandinavia, Louisiana).
    3. Others are more cautious, but do admit the creative function of judges (France).
    4. Others still are too reluctant to give case law any real weight (Italy).
The problem of sources
1. Common law
  1. Judge lays down a rule in a specific case
    1. This rule is applied to other cases through imitation
      1. Rules are systematically applied but never become general principles
2. Civil law systems
  1. The rule emanates from the legislator and exists prior to the judgement
    1. The judgment applies the rule to a particular case
      1. This interpretation is necessarily creative, but not at the same level as the common law judge

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	Created by caroline.hagg.10 over 11 years ago