Sources of Law: A Comprehensive Analysis
Sources of Law: A Comprehensive Analysis
Audience
This analysis is relevant to various legal fields: constitutional, administrative, criminal justice, international public, church, private financial, civil, commercial, labor, rural legislation, and procedural law.
Sources of Law
Sources of law are categorized as:
- Formal: Social imperatives established by authorities, possessing legal authority.
- Material: The material object itself provides the basis for legal understanding; it lacks inherent authority but influences the rule of law’s content.
Classification of Laws
Laws are classified as:
- Formal-Material-Prohibitive: These laws prohibit actions without establishing positive legal norms. They may supplement inadequate or incomplete expressions of will.
Public Order Act
Our doctrine identifies law enforcement agencies with mandatory law. While not all mandatory rules are of public order, all law enforcement is imperative and cannot be disregarded by parties’ will.
Formation Process of Law
Punishment
The act by which Congress approves a bill.
Defective Sanction
Occurs when the Senate and House of Representatives vote on different texts.
Enactment
The act by which the country’s president attests to the law and orders authorities to comply.
Veto
The national constitution allows the president to reject a law passed by Congress. The veto may be total or partial.
Publication
Laws must be published for general knowledge, a requirement linked to mandatory law. Publication ensures enforceability; the need is not based on knowledge through publication but on the social need for law enforcement.
System Entry into Force of Law
Two systems exist:
- Step: The law takes effect on various dates depending on distance from the publication location.
- Simultaneous: The law takes effect throughout the state simultaneously.
Repeal of Law
Repeal can be:
- Express and Tacit: Express repeal is explicitly stated in the new law. Tacit repeal occurs when the new law is incompatible with the previous one.
- Of Subordinate Laws: A repealed law also repeals lower-rank provisions implementing it.
- Of Repealed Provisions: Repealed provisions do not regain force unless a new law explicitly dictates otherwise.
- Desuetude: Non-implementation of a law over time, potentially leading to contrary custom formation.
Acts Contrary to Law
Violation of law results in sanctions to restore public order.
Nullity
A generic sanction for legal acts violating mandatory laws; it deprives the act of its normal effects due to originating defects.
Acts Contrary to Law: Fraud
Fraudulent acts involve an offense conducted under the guise of legality. This is seen in family law (subterfuge to violate national law) and corporate law (partnerships for tax evasion).
Customary Law
Customary law is an application implemented in a community and considered legally binding.
- Element Lens: Repeated use meeting specific conditions.
- Subjective Element: Community belief that the use is legally binding.
Conventional Uses
Conventional uses are common and uniform practices, especially in contracts. While not legally binding, they play an important interpretative role.
Importance of Custom
The importance of custom as a source of law depends on philosophical positions. Rationalist natural law minimizes custom’s contribution, while positivism considers law the sole source, using custom only when law dictates.
General Principles of Law
Legal principles are guiding thoughts of existing or potential regulations. Different orientations exist:
- Natural Law: Principles of natural justice.
- Positivist: General principles of positive law; basic principles of existing law.
Both approaches embody general principles within the positive legal system.
Criteria Combining Concepts
Rules or principles not specifically formulated may arise from positive law through deduction. Rules derived from natural order form the initial foundation of positive regulation.
General Principles in the Civil Code (Article 16)
If a civil matter is unresolved by the letter or spirit of the law, similar laws’ principles will be considered. If still in doubt, general principles of law will be applied, considering the circumstances.
Sources and Functions
The civil code reveals the Austrian encoder’s link between general principles of law and natural law. General principles serve two functions:
- Source: Resolving issues not addressed in law or custom.
- Interpretative Element: Filling gaps in the law, not creating law but providing intrinsic validity or rational content.
Hierarchy of Principles
No contradiction should exist between general principles and special rules. Conflicts are decided in favor of the higher principle based on intrinsic validity or enforceability.
Statement of General Principles (Lorenz)
- The Idea of Law: General principles are guiding ideas for regulation.
- Mutual Respect: Respect for human dignity and legal capacity.
- Individual Sphere: Self-determination and contract effectiveness.
- Responsibility: Distinction between civil and criminal liability.
- Liability: Distinction between contractual and tort liability.
- Equality: Equal treatment for equals, unequal for unequals.
- Social Leveling: Considering power differences.
- General Principles of the Rule of Law: Limitation and control of power, prohibition of retroactive laws, judicial impartiality, and the principle of contradiction.
Judicial Decisions
Concept and Current Importance
Jurisprudence, in the strict sense, refers to court decisions used to decide issues. Knowledge of case law is essential for professional practice and legal doctrine.
Methods of Unification
Activity is distributed among the Supreme Court, provincial courts, and chambers. Methods include:
- Extraordinary Appeal (Article 14 of Law 48): Addresses federal issues involving the constitution or federal law interpretation.
- Plenary Failure: A resource used when court doctrine is inconsistent with previous rulings. It standardizes doctrine, applicable to lower courts.
- Appeal: A means to standardize law through a special court or the Supreme Court.
Legal Doctrine
Concept and Importance
Doctrine comprises jurists’ works (books, articles, commentaries). It’s crucial for interpreting existing texts and proposing improvements.
Effects of Law in Relation to Time
Three theoretical answers exist regarding the effect of new laws on pre-existing legal situations:
- New law does not extend to situations arising under previous legislation.
- New law applies to all legal situations.
- New law governs some aspects of situations not concluded under replaced laws.
Values at Stake: The new law is considered an advancement. It’s reasonable to aim for the widest possible validity.
Non-Retroactivity: Modern law generally prohibits retroactive application.
Principle of Non-Retroactivity
Origin: The”Theodosian rul” states that new laws do not reach past events. However, the legislature may allow retroactivity if appropriate.
Civil Laws: The civil code links non-retroactivity to acquired rights and exceptions for public order.
Criminal Matters: Non-retroactivity is an absolute principle, except for more lenient laws.
Exceptions to Non-Retroactivity
- Public Order Laws: Acquired rights cannot be invoked against public order laws.
- Interpretative Laws: These laws interpret existing laws and can be applied retroactively, but not to already tried cases.
- Expressly Retroactive Laws: The legislature can explicitly make a law retroactive.
Doctrine of Acquired Rights
Source: Rooted in natural law; rights arise from individual actions.
Concept of Entitlement: All requirements for charging the subject as a legal prerogative are met before the new law’s enactment.
Concept of Mere Expectation: Not all requirements are met. For example, an heir’s status.
Formulation: A law is retroactive if it affects rights acquired under previous legislation, not mere expectations.
Legislative Reception: Article 3 of the Civil Code states that laws are prospective, not retroactive, and cannot alter existing rights.
Critical: Laws can affect entitlements without being explicitly retroactive.
Roubia Doctrine
Exposure: This doctrine proposes a coherent system based on non-retroactivity and immediate effect.
Elements: Uses the notion of legal status and immediate effect. Completed phases of status are not affected by new laws, but effects after enactment are regulated by the new law.
Elaborations to Roubia: Works by Bach, Mild, Heron, and Dekeuwer-Defossez address the survival of old law in contract regulation.
Legal Situation
Concept
A way people are situated in society, regulated by law.
Usefulness
Distinguishes situations, linking persons and things or establishing legal relationships.
Legal Relationship
Concept
A bond between two people protected by law.
Elements
- Subject: People or people and things.
- Object: Assets, interests, behaviors, goods (tangible or intangible).
- Cause: Source (fact), reason (why), and final result (what is sought).
Subjective Rights
Concept
A prerogative or privilege allowing a subject to demand certain conduct from others.
Legitimate Interest
Individual seeks immediate self-interest gratification.
Warranty of Legality
Ensures administrative actions comply with legality.
Diffuse Interests
Community interests in respecting rights (e.g., environmental protection).
Exercise of Rights
No one has the right to take justice into their own hands, except in cases of:
- Necessity: Acting to save oneself or another from imminent danger.
- Self-Defense: Unlawful aggression, immediacy, and reasonable defense.
Principle of Good Faith
Objective and Subjective Good Faith: Subjective good faith involves acting lawfully based on belief (excluding negligence). Objective good faith involves acting with loyalty and honesty.
Doctrine of Estoppel
A prior conduct creates an expectation of future behavior, and a contradictory claim is made.
Doctrine of Appearance
Material acts may not reflect underlying rights. The appearance of a right can create a binding right for a good-faith third party.
Application Conditions: Visible external situation, good faith, and due diligence.
Effects: Creates rights that could not have been obtained through normal legal rules.
Assumptions in Argentine Law: Various articles in the Civil Code address acquired rights in good faith.