Sources of Law
& Law Creating
Fundamentals of Law &
Government
Maciej Pichlak
Department of Legal Theory and Philosophy of Law University of Wroclaw
Room 302A | maciej.pichlak@uwr.edu.pl https://prawo.uni.wroc.pl/user/12147
The concept of the source of law
SOURCES OF LAW
Fontes iuris oriundi Fontes iuris cognoscendi
material formal official unofficial
Formal sources of law – the (ideal?)
model…
Formal sources of law – the (ideal?) model…
Co nst tut on
Legislaton
Subordinate legislaton
Local laws etc.
… and the (harsh?) reality
constitution legislaton
Subordinate legis.
/ regulaton
local laws and byelaws
internatonal
treates EU law
case law
customary law
general principles
standards of equity
internal laws
Constitution
Determines basic legal, politcal, and economic order of the state.
Typically, it regulates:
• the government and relatonships of its consttuent parts, and
• basic rights and freedoms of citzens.
Possesses supremacy over legislaton and other laws.
More difficult to replace or amend.
UK: unwritten (uncodified) constitution
There are three main sources of consttutonal rules:
(1) statutes: include those relatng to the structure of the state such as the Act of Union 1705 and the European Communites Act 1972, those regulatng the
organs of state such as the Parliament Acts 1911 and 1949, and those relatng to fundamental rights such as Magna Carta and the Human Rights Act 1998;
(2) case law: created in the ordinary courts;
(3) conventions: the rules of the consttuton that cannot be enforced by a court.
They are at least as important as statutes, but must not be inconsistent with statute law or case law.
Youngs, p. 7
Legislation (statutory law)
• Described also as primary legislaton or parliamentary acts.
• Enacted by the legislatory body (parliament).
• Issued in the form of either code or statute (piecemeal legislaton).
• Sometmes (France) divided further into organic laws (lois organiques) and ordinary laws (lois ordinaries).
• Published in official journal.
Subordinate legislation / regulation
These forms of legislaton that are inferior to and subordinated to the priamry legislaton.
Two models: as delegated legislaton or as independent regulaton.
Delegated legislaton: Poland
Independent regulaton: USA
• As a prerogatve power of the executve branch of government
• The elelement of the system of check and balance Special case: independent regulatory agencies (IRA’s)
Delegated legislation: regulation in Polish law (rozporządzenie)
Artcle 92 of the Polish Consttuton:
1. Regulatons shall be issued
a) on the basis of specific authorizaton contained in statutes b) for the purpose of implementaton of statutes
c) by the organs specified in the Consttuton.
2. The authorizaton shall specify
a) the organ appropriate to issue a regulaton b) the scope of matters to be regulated
c) guidelines concerning the provisions of such act.
International treaties
• Ratficaton: the act of formal signing and confirmaton.
• In some cases (and countries), ratficaton requires also a consent by legislaton.
• When this is the case, it usually takes priority over statutory law.
• Incorporated into the legal system of the state.
The European Union law
1. Primary law
Treates: Treaty on the Functoning of the European Union (Lisbon Treaty, 2007)
2. Secondary law
• Regulatons
• Directves
• Decisions, opinions and recommendatons
3. Supplementary law
• Case law of CJEU
• General principles
An autonomous system, at the same tme forming a part of the state law of the member states.
The European Union law
Its positon in the legal system of member states:
Direct effect (van Gend en Loos 1963)
Supremacy/ Priority (Costa v. ENEL 1964)
Where in the hierarchy?
• German Consttutonal Court: Solange I (1974) and Solange II (1986).
Case law
Precedent in the common law and the civil law systems:
Precedent de iure (binding) or de facto (persuasive)
Binding precedent:
- binding for future cases (stare decisis principle);
- independent and sufficient ground for decision.
The doctrine of precedent and the possibility of overruling.
Customary law
• Perpetuated and steady practce
• General convicton on a binding character (opinio iuris)
• Authentcaton by state authorites
Where is it used?
• Public internatonal law;
• laws of indigenous people (Africa, South and North America, Australia);
• commercial law;
• common law.
Internal laws: Poland
(Resolutions and orders)
Artcle 93 of the Polish consttuton:
• Shall bind only the units organizatonally subordinate to the organ which issues such act;
• shall not serve as the ground for decisions taken in respect of citzens, legal persons and other subjects;
• shall be subject to scrutny regarding their compliance with universally binding law.
