Sources of law

Last updated

Sources of law are the origins of laws, the binding rules that enable any state to govern its territory.

Contents

The term "source of law" may sometimes refer to the sovereign or to the seat of power from which the law derives its validity. [1]

Jurisprudence

The perceived authenticity of a source of law may rely on a choice of jurisprudence analysis. Tyrants such as Kim Jong-un may wield De facto power, [note 1] but critics would say he does not exercise power from a de jure (or legitimate) source. After WWII it was not a valid defence at Nuremberg to say "I was only obeying orders", and the victors hanged Nazis for breaching "universal and eternal standards of right and wrong".

Over decades and centuries, principles of law have been derived from customs. The divine right of kings, natural and legal rights, human rights, civil rights, and common law are early unwritten sources of law. Canon law and other forms of religious law form the basis for law derived from religious practices and doctrines or from sacred texts; this source of law is important where there is a state religion. Historical or judicial precedent and case law can modify or even create a source of law. Legislation, rules, and regulations form the tangible source of laws which are codified and enforceable.

In civil law systems, the sources of law include the legal codes, such as the civil code or the criminal code, and custom; [note 2] in common law systems there are also several sources that combine to form “the law”. Civil law systems often absorb ideas from the common law [note 3] and vice-versa. Scotland, for instance, has a hybrid form of law, as does South Africa, whose law in an amalgam of common law, civil law and tribal law.

A state may comply with international law, it may have a written or federal constitution, or it may have regional legislature, but normally it is the central national legislature that is the ultimate source of law. While a written constitution may seem to be the prime source of law, the state legislature may amend its constitution provided certain rules are followed. International law may take precedence over national law, but international law is mainly made up of conventions and treaties that have been ratified; and anything that can be ratified may be denounced later by the national parliament. [note 4] Although local authorities may feel that they have a democratic mandate to pass by-laws, the legislative power they wield has been delegated by parliament; and what parliament gives, parliament make later take away. [note 5]

In England, the archetypal common law country, there is a hierarchy of sources, as follows: [2]

International sources

International Treaties

Governments may sign International Conventions and Treaties; but these normally [3] become binding only when they are ratified. Most conventions come into force only when a stated number of signatories have ratified the final text. [4] An international convention may be incorporated into a statute (e.g. Hague-Visby Rules in Carriage of Goods by Sea Act 1971; e.g. the Salvage Convention in the Merchant Shipping Act 1995). The Council of Europe’s European Convention on Human Rights is enforced by the ECHR in Strasbourg.

European Community Law

The European Union is special example of international law. European nations that join the EU thereby adopt all EC Law to date (the acquis communautaire ), namely: treaty provisions, regulations, directives, decisions, and precedents. Member States become subject to “Brussels” [5] and to the binding precedent decisions [6] of the Court of Justice of the European Union (or CJEU) in Luxembourg. However, Brussels may only act and legislate in accordance with the EU treaties, and the CJEU's supremacy applies only in matters of EU law.

National sources

Legislation

Legislation is the prime source of law. and consists in the declaration of legal rules by a competent authority. Legislation can have many purposes: to regulate, to authorize, to enable, to proscribe, to provide funds, to sanction, to grant, to declare or to restrict. A parliamentary legislature frames new laws, such as Acts of Parliament, and amends or repeals old laws. The legislature may delegate law-making powers to lower bodies. In the UK, such delegated legislation includes Statutory Instruments, Orders in Council, & Bye-laws. Delegated legislation may be open to challenge for irregularity of process; and the legislature usually has the right to withdraw delegated powers if it sees fit.

Most legislatures have their powers restricted by the nation's Constitution, and Montesquieu's theory of the separation of powers typically restricts a legislature's powers to legislation. [7] Although the legislature has the power to legislate, it is the courts who have the power to interpret statutes, treaties and regulations. Similarly, although parliaments have the power to legislate, it is usually the executive [8] [9] who decides on the legislative programmed. The procedure is usually that a bill is introduced to Parliament, and after the required number of readings, committee stages and amendments, the bill gains approval [10] and becomes an Act.

Case Law

Judicial precedent (aka: case law, or judge-made law) is based on the doctrine of stare decisive, and mostly associated with jurisdictions based on the English common law, but the concept has been adopted in part by Civil Law systems. Precedent is the accumulated principles of law derived from centuries of decisions. Judgements passed by judges in important cases are recorded and become significant source of law. When there is no legislature on a particular point which arises in changing conditions, the judges depend on their own sense of right and wrong and decide the disputes from first principles. Authoritative precedent decisions become a guide in subsequent cases of a similar nature. The dictionary of English law defines a judicial precedent as a judgement or decision of a court of law cited as an authority for deciding a similar state of fact in the same manner or on the same principle or by analogy. Another definition [11] declares precedent to be," a decision in a court of justice cited in support of a proposition for which it is desired to contend".

Compared to other sources of law, precedent has the advantage of flexibility and adaptability, and may enable a judge to apply "justice" rather than "the law".

Equity (England only)

Equity is a source of law peculiar to England and Wales. Equity is the case law developed by the (now defunct) Court of Chancery. [12] Equity prevails over common law, but its application is discretionary. Equity's main achievements are: trusts, charities, probate, & equitable remedies. There are a number of equitable maxims, such as: “He who comes to equity must come with clean hands”.

Parliamentary Conventions (UK mainly)

(not to be confused with International Conventions)

Parliamentary Conventions are not strict rules of law, but their breach may lead to breach of law. They typically are found within the English legal system, and they help compensate for the UK's lack of a single written constitution. Typically, parliamentary conventions govern relationships, such as that between the House of Lords and the House of Commons; between the monarch and Parliament; and between Britain and its colonies. For instance, after the Finance Act 1909, the House of Lords lost its power to obstruct the passage of bills, and now may only delay them. The prerogative powers are subject to convention, and in 2010, the monarch's power to dissolve Parliament was abolished. Britain's tradition with its colonies is that they are self-governing (although, historically, rarely with universal suffrage), and that the mother-country should stay aloof.

Customs (England & Commonwealth Nations)

A "General Custom" as a source of law is not normally written, but if a practice can be shown to have existed for a very long time, such as "since time immemorial' (1189 AD), it becomes a source of law.

A "Particular Custom" (or "private custom") may arise and become a right with the force of law when a person, or a group of persons has from long usage obtained a recognized usage, such as an easement.

Books of Authority (England mainly)

Up until the 20th century, English judges felt able to examine certain "books of authority" for guidance, and both Coke and Blackstone were frequently cited. [13] This old practice of citing only authors who are dead has gone; nowadays notable legal authors may be cited, even if they are still alive.

See also

Related Research Articles

Common law Law created by judicial precedent

In law, common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. The defining characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts, and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases, and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue. The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants. Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch. Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results, lies at the heart of all common law systems.

Constitutional law Body of law

Constitutional law is a body of law which defines the role, powers, and structure of different entities within a state, namely, the executive, the parliament or legislature, and the judiciary; as well as the basic rights of citizens and, in federal countries such as the United States and Canada, the relationship between the central government and state, provincial, or territorial governments.

Separation of powers refers to the division of a state's government into branches, each with separate, independent powers and responsibilities, so that the powers of one branch are not in conflict with those of the other branches. The typical division is into three branches: a legislature, an executive, and a judiciary, which is the trias politica model. It can be contrasted with the fusion of powers in parliamentary and semi-presidential systems, where the executive and legislative branches overlap.

Equity is a particular body of law that was developed in the English Court of Chancery. It exists in domestic law, both in civil law and in common law systems, and in international law. The tradition of equity begins in antiquity with the writings of Aristotle (epieikeia) and with Roman law (aequitas). Later, in civil law systems, equity was integrated in the legal rules, while in common law systems it became an independent body of law.

Law of the United Kingdom Overview of the law of the United Kingdom

The United Kingdom has four legal systems, each of which derives from a particular geographical area for a variety of historical reasons: English law, Scots law, Northern Ireland law, and, since 2007, purely Welsh law. Overarching these systems is the law of the United Kingdom, also known as United Kingdom law. UK law arises from laws applying to the United Kingdom and/or its citizens as a whole, most obviously constitutional law, but also other areas, for instance tax law.

English law Legal system of England and Wales

English law is the common law legal system of England and Wales, comprising mainly criminal law and civil law, each branch having its own courts and procedures.

Law of the Republic of Ireland Constitutional, statute and common laws of Ireland

The law of Ireland consists of constitutional, statute and common law. The highest law in the State is the Constitution of Ireland, from which all other law derives its authority. The Republic has a common-law legal system with a written constitution that provides for a parliamentary democracy based on the British parliamentary system, albeit with a popularly elected president, a separation of powers, a developed system of constitutional rights and judicial review of primary legislation.

Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties intended to show their consent by such an act. In the case of bilateral treaties, ratification is usually accomplished by exchanging the requisite instruments, and in the case of multilateral treaties, the usual procedure is for the depositary to collect the ratifications of all states, keeping all parties informed of the situation.

Law of Russia Overview of the law of Russia

The primary and fundamental statement of laws in the Russian Federation is the Constitution of the Russian Federation.

International law also known as "law of nations" is the name of a body of rules which regulate the conduct of sovereign states in their relations with one another. Sources of international law include treaties, international customs, general widely recognized principles of law, the decisions of national and lower courts, and scholarly writings. They are the materials and processes out of which the rules and principles regulating the international community are developed. They have been influenced by a range of political and legal theories.

Australian legal system Codified and uncodified forms of law of Australia

The legal system of Australia has multiple forms. It includes a written constitution, unwritten constitutional conventions, statutes, regulations, and the judicially determined common law system. Its legal institutions and traditions are substantially derived from that of the English legal system. Australia is a common-law jurisdiction, its court system having originated in the common law system of English law. The country's common law is enforced uniformly across the states.

Law of France Overview of the law of France

The Law of France refers to the legal system in the French Republic, which is a civil law legal system primarily based on legal codes and statutes, with case law also playing an important role. The most influential of the French legal codes is the Napoleonic Civil Code, which inspired the civil codes of Europe and later across the world. The Constitution of France adopted in 1958 is the supreme law in France. European Union law is becoming increasingly important in France, as in other EU member states.

The Law of Spain is the legislation in force in the Kingdom of Spain, which is understood to mean Spanish territory, Spanish waters, consulates and embassies, and ships flying the Spanish flag in international waters. It is also applicable to the Spanish armed forces worldwide. Spanish law stems from the Spanish people through democratically elected institutions. Equally, part of the legislation comes from the supranational institutions of the European Union, which also enjoy democratic legitimacy.

Part XI of the Constitution of India – consists of Articles on Relations between the Union and States.

Law of Belgium

The Law of Belgium is a legal system of Belgium based on the Napoleonic code. The Napoleonic code is the French civil code which was issued between 1804 and 1810. It clearly presents the French legal system. Belgium’s constitution is influenced by earlier constitutions of the French and the Netherlands. Belgium became an independent state in 1830 with the help of British government and there were restrictions on the parliamentary system of Belgium government. The language differences in Belgium have caused governmental and constitutional problems. Official languages are French, Dutch and German, which has official status in one district only. Parliamentary democracy usually ends up becoming a coalition government. Belgium is a federal state and has a civil law system.

Constitution of the United Kingdom Principles, institutions and law of political governance in the United Kingdom

The Constitution of the United Kingdom or British constitution comprises the written and unwritten arrangements that establish the United Kingdom of Great Britain and Northern Ireland as a political body. Unlike in most countries, no attempt has been made to codify such arrangements into a single document. Thus, it is known as an uncodified constitution. This enables the constitution to be easily changed as no provisions are formally entrenched. However, the Supreme Court of the United Kingdom recognises that there are constitutional principles, including parliamentary sovereignty, the rule of law, democracy and upholding international law.

Scots law Hybrid legal system of Scotland, containing civil law and common law elements

Scots law is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Irish law, it is one of the three legal systems of the United Kingdom.

Parliamentary sovereignty is a concept in the constitutional law of some parliamentary democracies. It holds that the legislative body has absolute sovereignty and is supreme over all other government institutions, including executive or judicial bodies. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law or by precedent.

Primary legislation and secondary legislation are two forms of law, created respectively by the legislative and executive branches of governments in representative democracies. Primary legislation generally consists of statutes, also known as 'acts', that set out broad outlines and principles, but delegate specific authority to an executive branch to make more specific laws under the aegis of the principal act. The executive branch can then issue secondary legislation, creating legally enforceable regulations and the procedures for implementing them.

Law of Guernsey

The Law of Guernsey originates in Norman Customary Law, overlaid with principles taken from English common law and Equity, as well as from statute law enacted by the competent legislature(s) -- usually, but not always, the States of Guernsey

References

  1. "Sources of law" may also mean any premiss of a legal reasoning.Goltzberg, Stefan (2016). Les Sources du droit. Paris: Presses Universitaires de France. ISBN   2130748600.
  2. Slapper & Kelly, English Legal System, Routledge, 2016
  3. "Dualist" jurisdictions require ratification of treaties; "monist" jurisdictions do not.
  4. For instance the Maritime Labour Convention entered into force on 20 August 2013, one year after registering 30 ratifications of countries representing over 33 per cent of the world gross tonnage of ships
  5. "Brussels" is the Commission, the Council of Ministers & the European Parliament acting in concert
  6. e.g.. such as Van Gend en Loos.
  7. Executive and judicial power is to be exercised by, respectively, the government and the courts.
  8. In the UK, the government sets out its programme in the Queen's Speech
  9. In the EU, only the Commission may initiate legislation
  10. In the UK, this requires the Royal Assent
  11. Mozley & Whiteley's Law Dictionary - E.R. Hardy Ivamy
  12. The Judicature Acts 1873-75 abolished the Courts of Chancery. Chancery Division of the High Court succeeds the old Courts of Chancery
  13. Edward Coke's Institutes of the Lawes of England , William Blackstone's Commentaries on the Laws of England , and similar texts.

Notes

  1. Austin's "command theory of law" asserts that to be effective, law must have a sovereign and a sanction to back it up.
  2. For example, in Louisiana Civil Code art. 1, the sources of law are custom and legislation.
  3. For instance , the ECJ is a civil court that embraces binding precedent
  4. The UK is (in 2018) taking steps to denounce European Law
  5. The UK ’s Westminster Parliament can, for instance, suspend at will Northern Ireland’s Assembly at Stormont