Law
Sources of Law
Sources of law refer to the origins from which legal rules and principles are derived. These sources can include legislation, such as statutes and regulations, as well as judicial decisions, known as case law. Additionally, customary practices and legal doctrines may also serve as sources of law, providing guidance for legal interpretation and application.
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10 Key excerpts on "Sources of Law"
eBook - PDF- John Grant(Author)
- 2014(Publication Date)
- EUP(Publisher)
SOURCES OF INTERNATIONAL LAW 11 THE MEANING OF SOURCES Sources as a term describes the font of, or the classification used for, the legal rules that are to be applied to a particular problem. The sources of international law are generally accepted as being expressed in Art 38(1) of the Statute of the International Court of Justice, which reads: “The Court, whose function is to decide in accordance with inter-national law such disputes as are submitted to it, shall apply: a. international conventions, whether general or particular, estab-lishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law. 2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono , if the parties agree thereto.” This article in the ICJ Statute is a direction to the International Court as to the law it is to apply. It is not stated to be an enumeration of the sources of international law. Yet no-one disputes that the listing in Art 38(1) is anything other than a listing of recognised sources of international law. The only question is whether Art 38(1) exhaustively lists the sources of international law or whether there are other sources not mentioned in that article. A distinction is sometimes drawn between the formal and the material sources of international law. Article 38(1)(a)–(c) (Conventions, custom and general principles) are the formal sources; they are where one turns for the actual content of the law.
eBook - PDF- Bryan Clark, Gerard Keegan(Authors)
- 2014(Publication Date)
- EUP(Publisher)
SOURCES OF SCOTS LAW 9 2 SOURCES OF SCOTS LAW The term “source” of law can hold different meanings. As noted in Chapter 1, Scots law has evolved over the best part of a thousand years, being influenced by unsophisticated customary rules, Canon (or church) law, Roman law, Feudal law and English law. The notion of a source of law may also relate to the rationale behind the inception of a particular legal rule. In this sense, religious doctrines, social trends, political expediency and economic efficiency may underlie the adoption of particular legal principles. Although these historical and philosophical influences account for the origins of Scots law, they do not answer the question as to why particular rules are binding upon us. If a rule is to be binding then it must be derived from one or more recognised Sources of Law, known as formal sources. These formal sources are discussed below. FORMAL SOURCES The formal sources include: • legislation; and • common law: Common law sources encompass: • judicial precedent; • institutional writings; • custom; and • equity. Legislation Legislation may be considered the primary source of law and is typically the result of the expression of will of a rule-making body which exhibits some form of state legitimacy or authority. The volume of legislation affecting Scotland has increased considerably over recent years. Modern society is complex and, reflecting this, Parliament has deemed it necessary to legislate in the name of regulating and facilitating multifarious activities in society. Beginning at the time of the Industrial Revolution in the 1850s, successive governments found it necessary to propose laws in areas such as employment, housing, health and social services, education and the environment. Current trends show no sign of the legislative juggernaut abating, leading some to 10 SCOTTISH LEGAL SYSTEM claim that now we live in a “nanny State”, where Parliament has become increasingly guilty of over-regulating our lives.
eBook - PDFLaw
Made Simple
- D. L. A. Barker, C. F. Padfield(Authors)
- 2014(Publication Date)
- Made Simple(Publisher)
3 LEGAL SOURCES In English law substantive rules of law derive their authority from the following: judicial precedents, legislation, certain ancient textbooks and, to a very limited extent, local custom. These are called the legal sources. 1. Judicial Precedent The essentials of good law are, on the one hand, certainty; and on the other, uniformity and consistency. Common law was judge-made, i.e. the judges moulded or created out of the original customary rules the common law of England whose principles are today found in case law. Once a regular system of law reporting had developed and reports published, judges began to be guided by decisions in previous cases; and eventually it became the established practice that judges were bound to follow the decisions of higher courts in similar cases. The general rule established in the nineteenth century and consistently followed since was of binding precedent. The hierarchy of courts in this matter is as follows: House of Lords. Its decisions bind all other courts but not necessarily the House of Lords itself. Court of Appeal (Civil Division). Its decisions bind the High Court, county courts and Divisional Courts, and itself. However, in Derby & Co. Ltd. v. Weldon and Others (No. 3) (1989), a High Court Judge held that in exercising a discretion to strike out a claim, the court in a first instance can disregard a recent Court of Appeal decision where there is a possibility that it may be reversed by the House of Lords. Court of Appeal (Criminal Division V Its decisions bind the Crown Court and the magistrates' courts. They probably bind the Queen's Bench Divisional Court. The Court normally follows its own decisions but on occasion does not do so. Queen's Bench Divisional Court. Its decisions bind the magistrates 9 courts but not the Crown Court (Colyer, 1974) and normally the Court follows its own decisions. High Court. Decisions of its judges do not bind other High Court judges, but they bind county court judges.
eBook - PDFInternational Law
Cases and Materials with Australian Perspectives
- Donald R Rothwell, Stuart Kaye, Afshin Akhtar-Khavari, Ruth Davis, Imogen Saunders(Authors)
- 2018(Publication Date)
- Cambridge University Press(Publisher)
2 SOURCES OF INTERNATIONAL LAW 2.1 Introduction 46 2.1.1 The traditional sources of international law 46 2.1.2 Hierarchy of norms 48 2.2 Customary international law 52 2.2.1 Jurisprudence of the ICJ 54 2.2.2 Local or regional custom 77 2.2.3 The persistent objector 79 2.3 Treaties 82 2.4 Treaties and customary international law 83 2.5 General principles of law 90 45 2.6 Subsidiary sources of international law 96 2.6.1 Judicial decisions 96 2.6.2 Contributions of publicists 99 2.7 Alternative sources of international law 100 2.7.1 UN practices and the formation of international law 101 2.7.2 Soft law 107 2.1 Introduction Law-making is not a straightforward process in international law. There is no centralised structure or global government responsible for identifying certain policy directions and legislating accordingly. With the exception of decisions of the United Nations (UN) Security Council and the European Commission, States have not agreed to being bound by resolutions or decisions of international organisations. International organisations and groupings of States like the UN General Assembly are no more capable of creating formal and binding legal norms than diplomatic conferences that discuss and draft agreements for signature and ratification by States. The most crucial difference between international law and domestic law is that, by and large, international law is created by the very subjects it binds – that is, States – without a formalised structure of government or legislature. This chapter focuses on the various law-making processes and structures available for creating international law. It first considers the traditional sources of international law as set out in art 38(1) of the Statute of the International Court of Justice (ICJ Statute) 1 generally and the concept of hierarchy of norms and relative norms before considering each of the art 38(1) sources in turn.
eBook - PDF- Malcolm N. Shaw(Author)
- 2021(Publication Date)
- Cambridge University Press(Publisher)
63; G. Abi-Saab, ‘Les Sources du Droit International – Un Essai de Déconstruction’, in Le Droit International dans un Monde en Mutation, Montevideo, 1994, p. 29; and O. Schachter, ‘Recent Trends in International Law-Making’, 12 Australian YIL, 1992. 58 become law and the necessary mechanism to resolve any disputes about the law is evident. It reflects the hierarchical character of a national legal order with its gradations of authority imparting to the law a large measure of stability and predictability. The contrast is very striking when one considers the situation in international law. The lack of a legislature, executive and structure of courts within international law has been noted and the effects of this will become clearer as one proceeds. There is no single body able to create laws internationally binding upon everyone, nor a proper system of courts with comprehensive and compulsory jurisdiction to interpret and extend the law. One is therefore faced with the problem of discovering where the law is to be found and how one can tell whether a particular proposition amounts to a legal rule. This perplexity is reinforced because of the anarchic nature of world affairs and the clash of competing sovereignties. Nevertheless, international law does exist and is ascertainable. There are ‘sources’ available from which the rules may be extracted and analysed. By ‘sources’ one means those provisions operating within the legal system on a technical level, and such ultimate sources as reason or morality are excluded, as are more functional sources such as libraries and journals. What is intended is a survey of the process whereby rules of international law emerge. 2 Article 38(1) of the ICJ Statute is widely recognised as the most authoritative and complete statement as to the sources of international law.
eBook - PDFInternational Law
Cases and Materials with Australian Perspectives
- Donald Rothwell, Stuart Kaye, Afshin Akhtarkhavari, Ruth Davis(Authors)
- 2014(Publication Date)
- Cambridge University Press(Publisher)
Gerald G. Fitzmaurice, ‘Some Problems Regarding the Formal Sources of International Law’, in Symbolae Verzijl, M. Nojhoff, La Haye, 1958 (footnotes omitted) [153] The Sources of Law are commonly classified as ‘formal’ and ‘material’. Side by side with these there are the ‘evidences’ or records of law. Thus, if State practice, for instance, is a source of law, it would be incorrect to regard such things as documents embodying diplomatic representations, notes of protest, etc, as constituting Sources of Law. They are evidences of it because they demonstrate certain attitudes on the part of States, but it is the State practice so evidenced which is the source of law . . . Material, historical, indirect sources represent, so to speak, the stuff out of which the law is made. It is they which go to form the content of the law. These are the sources to which the lawgiver goes, so to speak, in order to obtain ideas, or to decide what the law is to consist of, and this is broadly true whether the lawgiver be conceived of as a national legislature, or as the international community evolving customary rules through State [154] practice. The formal, legal, and direct sources consist of the acts or facts whereby this content, whatever it may be and from whatever material source it may be drawn, is clothed with legal validity and obligatory force. The essence of the distinction therefore is between the 56 INTERNATIONAL LAW thing which inspires the content of the law, and the thing which gives that content its obligatory character as law . . . [156] Thus, if the statute is both the formal source of the rule, and of the obligation to conform to it, the constitution is the formal source of the obligation to conform to the statute and whatever rules it may contain, and thus indirectly or ultimately of the particular rule itself.
eBook - PDF- Prince Zongwe(Author)
- 2019(Publication Date)
- Langaa RPCIG(Publisher)
49 C HAPTER 4 S OURCES OF INTERNATIONAL LAW One defining particularity of the Namibian legal system is that international law is one of the formal sources of Namibian law. And, to ascertain the content of international law, lawyers in Namibia must draw such content from the formal sources of international law. However, finding international law is, unlike municipal law, much harder. Changes to the international community since the creation of the United Nations in 1945 have led to fundamental disputes on the sources of international law. 172 For one thing, debates emerged concerning which rules have graduated to the status of international custom. As Brownlie observed, in international law, you are “faced with the problem of discovering where the law is to be found and how [you] can tell whether a particular proposition amounts to a legal rule.” 173 After research and inquiry, you can ascertain that a rule emanates from one or more of the following sources: treaties, custom, the principles of law recognized by the major legal systems, judicial decisions or doctrinal writings. 1. The standard analytical framework For an international court or forum to apply international law, parties to a dispute must prove that a given rule of international law emanates from one, or more, of three law-creating processes: treaties, international custom or the general principles of law recognised by major legal systems. 174 Article 38(1) of the Statute of the International Court of Justice (hereinafter ‘ICJ Statute’) enumerates the formal sources of international law. But it bears mentioning that the sources of the international law applicable specifically to regional groupings 172 See, for example, M.Y.A. Kadir, ‘The United Nations General Assembly Resolution (UNGAR) as a Source of International Law: Toward a Reformulation of Sources of International Law’ (2011) 8 Indonesian Journal of International Law 275.
eBook - PDFThe Athenian Republic
Democracy of the Rule of Law?
- Raphael Sealey(Author)
- 1990(Publication Date)
- Penn State University Press(Publisher)
3 The Sources of Law ex non scripto ius venit, quod usus comprobavit. nam diuturni mores consensu utentium comprobati legem imitantur. - Justinian, Institutes, 1.2.9 In many modern states a distinction is drawn between the consti- tution, or "fundamental law" as it is called in some countries, and the laws. Both the laws and the provisions of the constitution are upheld by the courts; both are Sources of Law. But the distinction has two salient features. First, the constitution has greater author- ity than the laws. Therefore, if a law is shown to contravene a provision of the constitution, it is declared invalid by a court. Sec- ond, the procedure for changing the constitution, whether by add- ing to it or by canceling some of its provisions, is slower and more difficult than the procedure for changing the laws. In Athens in the fourth century a distinction was drawn between "laws" (nomoi) and "decrees" (pst?phismata). Both laws and decrees were upheld by the courts. The oath sworn by judges (dikastai) began with the undertaking: "I will vote in accordance with the laws and the decrees of the people of Athens and of the council of five hundred."' The Athenian distinction had the same two salient features as the modern distinction. Laws had greater authority than decrees, and if a decree was shown to contravene a law or some laws, the decree was declared invalid by a court. The proce- dure for changing the laws, whether by adding to them or cancel- ing some of them, was slower and more difficult than the procedure for passing or repealing decrees. Prima facie the two distinctions are similar. This chapter will study Athenian law with a view to finding out whether the distinc- tions are the same or different. In this way it will try to discover The Sources of Law what the Athenians understood by law. Section I will look at theo- retical views expressed in Athens on the types of content proper for laws and decrees respectively.
eBook - ePub- Alina Kaczorowska-Ireland(Author)
- 2016(Publication Date)
- Routledge(Publisher)
Sources of EU law
DOI: 10.4324/9781315561035-4Contents
- Chapter outline
- 4.1 Introduction
- 4.2 Primary sources of EU law
- 4.3 General principles of EU law
- 4.4 External sources which derive from international commitments of the EU
- 4.5 Secondary sources of EU law
- 4.6 EU acts not expressly mentioned in Article 288 TFEU
- 4.7 The contribution of the ECJ to the creation of sources of EU law
- 4.8 “Soft law” and the open method of co-ordination (OMC)
- Recommended reading
- End of chapter questions
- Aide-mémoire
Chapter outline
The EU legal system is structured and hierarchical. The sources of EU law and their hierarchy are as follows:-
The primary sources are:
- The founding Treaties: the EEC and the EA Treaties as amended by subsequent Treaties. Accordingly, after the entry into force of the ToL, the EU is founded on the TEU and the TFEU.
- Protocols and annexes attached to these Treaties which form an integral part of them.
- Acts of accession of new Member States.
- Acts adopted by the Council, or the Council and the EP for the adoption of which approval by the Member States in accordance with their respective constitutional requirements is necessary, e.g. Articles 311 and 233(1) TFEU as well as amendments to the EU Treaties effected under the simplified revision procedures provided for in Article 48(6) and (7) TEU.
- The CFREU (Article 6(1) TEU) (see Chapter 8 ).
- General principles of EU law refer mainly to a body of unwritten principles which underpin the EU legal order. In the hierarchy of sources, general principles are either part of primary sources or inferior to primary sources but above all other sources. Their ranking depends on their origin. Many principles are expressly mentioned in the Treaties and in the CFREU and are therefore clearly primary sources. The ECJ has recourse to general principles in order to supplement other sources of EU law.
- Antonio Cassese, Joseph H. H. Weiler, Antonio Cassese, Joseph H. H. Weiler(Authors)
- 2010(Publication Date)
- De Gruyter(Publisher)
4 The Classical Sources of International Law Revisited a proposal at one of these conferences, becomes what has been called a conduct model, that is to say, it constitutes the focal point of a subsequent practice of States which, in due course, hardens into a rule of customary international law. B. Treaties HAZARD In approaching my subject of treaties as a source of international law, I am mindful of a dicussion we used to amuse ourselves with in the American Society of International Law. The question was: does an education in law or political science fit one better to understand international law? Our seniors here will recall the prominent American scholars who were trained in political science — Quincy Wright and Herbert Briggs. Those trained in law included James Brown Scott and Philip Jessup. Of course, there was no consensus on appropriate training for the discipline, but the point being made is important to our discussion of today. Perhaps the topic should be studied as a feature of international politics rather than as a study in hard legal science. I shall refer in my brief intervention only to some of the controversial issues relating to treaties, as the fundamental principles are well known. The principal question being mooted these days is: are treaties legislation or contracts? The debate was initiated because of Third World pressure for recognition in law of their aspirations and the fact that in their position as the majority of the members of the United Nations they have the power of numbers. They cannot be ignored. The debate is by no means new. Fifty years ago Judge Manley O. Hudson entitled a series of multilateral treaties he edited International Legislation. He was an enthusiast, hoping to make international law binding upon the world.
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