Sources of Law & Law Creating

(1)

Sources of Law & Law Creating

Fundamentals of Law & Government

Maciej Pichlak PhD Department of Legal Theory and Philosophy of Law University of Wroclaw Maciej.Pichlak@uwr.edu.pl

(2)

The concept of a source of law

SOURCES OF LAW

Fontes iuris oriundi Fontes iuris cognoscendi

material formal official unofficial

(3)

Basic forms of law creating

1. Law-making (Enacting)

- Unilateral (legislation, regulation)

- Multilateral (agreement, convention, treaty)

2. Practice

- Customary law

- Case law (precedents)

(4)

Forms of law-making

• Universally binding laws

- binding all categories of addressees (private individuals) - published in official journals (promulgation)

- closed system (limited number of forms and subjects)

• Internal laws

- binding only subordinated subjects - less formalized, open system

(5)

Universally binding laws

Constitution

Parliamentary acts (statutes) Ratified international treaties

Executive orders Local laws (regulations, ordinals)

(6)

Internal laws: Poland

Resolutions and orders

Article 93 of Polish constitution:

• Shall bind only those units organizationally subordinate to the organ which issues such act;

• shall not serve as the ground for decisions taken in respect of citizens, legal persons and other subjects;

• shall be subject to scrutiny regarding their compliance with universally binding law.

(7)

Customary law

• Perpetuated and steady practice

• General conviction on a binding character (opinio iuris)

• Authentication by state authorities

Where is it used?

• Public international law;

• laws of indigenous people (Africa, South and North America, Australia);

• commercial law;

• common law.

(8)

Precedent as a source of law

Precedent in common law and statutory law system:

Precedent de iure (binding) or de facto (persuasive)

Binding precedent:

- Binding for future cases (stare decisis principle) - Independent and sufficient ground for decision

(9)

Public international law

• Treaties

• Customary law

• Ius cogens

• Law created by international organization

(10)

European Union law

1. Primary law

Treaties: Treaty on the Functioning of the European Union (Lisbon Treaty, 2007)

2. Secondary law

• Regulations

• Directives

• Decisions, opinions and recommendations

3. Supplementary law

• Case law of CJEU

• General principles

An autonomous system, at the same time forming a part of the state law of the member states.

(11)

European Union law

Its position in the state law of the member states

 Direct effect (van Gend en Loos 1963)

 Supremacy/ Priority (Costa v. ENEL 1964)

What about the hierarchy?

• German Constitutional Court: Solange I (1974) and Solange II (1986).

(12)

Branches of EU Law

• Constitutional law

• Competition law

• Law of internal market

(13)

Sources of Law & Law Creating