The sources of law

De Baripedia

To search for the source of the law is to search for the point by which it came out of the depths of social life to appear on the surface of the law.

The sources are divided into two categories:

  • formal (direct) sources of law: these are the obligatory forms that give rise to a rule of law, i.e. the forms that the law must take in order to impose itself as rules of law.
  • the material sources (indirect, real, substantial) of the law: are the sources that embrace all social phenomena and contribute to the substance, the subject matter of the law.

Formal sources of law

The formal sources of law vary according to time and place. The more organized a society is, the less the role of custom becomes and the role of the law becomes more important. The legal system of our societies is made up of written rules of law.

The custom

Custom is the set of legal rules resulting from a use established in a community and held by it as legally binding; it is a direct source of unwritten law.

Custom is the oldest form of law formation, it is the almost exclusive source of law. Gilissen shows that between the 10th and 12th centuries, custom was the main source of law in Western societies. Basically, for 200 years, the custom has not been widely used.

Customs are there to supplement a written law. They arise from the practices of a particular group, they can change if the practice changes and they can disappear by repeal or obsolescence.

The constituent elements of custom are:

  • Long use: it requires a use followed by the subjects as a support for a subjective right in a prolonged and repeated way of about forty years. The formation of custom develops with the practice of adopting a particular solution according to a problem. It comes from the people or from an authority in the context of conflict resolution.
  • Opinio necessitatis: conviction that the use of custom is mandatory. Individuals must be firmly convinced that there is a rule of law. Thus the use must be implemented in a community.

The custom emanates from the popular will and adapts to the customs. However, custom lacks certainty, because it is oral and proof of its existence is difficult to provide, it is the one who evokes a custom who must provide proof. In this respect, custom is against the law. But the judge always knows the law according to the principle iura novit curia.

The law only puts in writing the experience gained from custom. Today, custom only plays a secondary and subsidiary role when the written law is deficient.

Customary law within the meaning of the Swiss Civil Code of 1912 is customary law at the level of the Confederation. The judge applies a custom throughout Switzerland as long as it does not contradict a certain region of Switzerland.

Custom often opens the way to law that only puts custom in writing.

The law

The law is the general and abstract rule setting out rules of law, obligations and prohibitions.

A distinction must be made between:

  • Substantive: an act setting out a rule of law, or a set of rules of law, enacted by a competent body in accordance with due process (example - Charter of the United Nations).
  • Formal: this criterion does not focus on the content of the law, but on its drafting procedure, hence the use of the adjective "formal", which refers to the forms and conditions of its drafting process. This conception comes from the revolutionary period of the 18th century, the law must be the work of the sovereign people or their representatives, because the free man is the one who obeys laws that he gives himself unlike the slave who suffers the law of the despot. The law in the formal sense comes from the legislator, who can be national (federal) (Federal Parliament), cantonal (Grand Council), communal (Communal Council). It is only the legislative body that enacts it through its creative function of law. These are the laws of the Nation's elected parliament.

In Switzerland, it is not only Parliament that adopts legal rules. The executive can very well enact laws in the material sense. These bodies are not legislative, which makes it impossible to speak of a law in the formal sense. It should also be noted that the majority of laws are enacted by the executive.

However, an order is not a rule of law, because it is not general and abstract in nature, which does not prevent it from being enacted by Parliament.

It is not a law in the material sense, but in the formal sense because it is enacted by Parliament even if the order is not a rule of law.

While the law in the formal sense is, with few exceptions (federal decrees), a law in the material sense, the law in the material sense is much less often a law in the formal sense.

The substantive sources of law

The case law

Case law refers to all decisions made by courts and other law enforcement authorities; it also refers to the solutions adopted in its decisions.

This is the law that emerges from the sentences and rulings of the courts. In the absence of written rules, the judge must refer to the decision made by a fellow judge in a similar case. The judge may also distance himself from the previous decision and decide the case in a different way due to circumstances as well as new conditions.

In this case, it is said that the judgment sets a precedent. Case law solutions that play an important role in the Swiss legal system are also called praetorian solutions.

The doctrine

Doctrine is the set of opinions expressed on the law by persons whose main activity is to practice or teach law.

The scientific quality of the doctrine can vary considerably. At the moment, we are witnessing a period of legislative inflation; at the same time, there is a considerable increase in doctrinal production, which is increasingly concerned with sticking to the legal reality and adapting to the immediate event. This tendency to immediacy causes him to lose his long-term vision. Doctrine no longer has enough distance and a panoramic vision that would allow weighting.

Doctrine is made up of many types of so-called doctrinal works:

  • the treaty: systematic and in-depth presentation of the whole of a subject or field;
  • the manual or précis: it is a subcategory of the treaty in the form of a synthetic book written for didactic purposes intended mainly for teaching;
  • the commentary: analytical presentation of a judgment, a law, a doctrinal text, etc.;
  • the monograph: scientific study of a specific question (law thesis);
  • the article: a short study of a legal text published in a specialized journal or collective work;
  • official editions of legal texts: commented collections of laws.

Today, doctrine is an authority, but history shows that doctrine can be a direct source of law.

In Rome, in ancient times, the science of law was written as a formal source of law. In the digest was collected in a set of opinions and excerpts edited by prestigious authors who, in Rome, were considered as direct sources of law.

Eugen Huber.

Over the centuries, great jurisconsults and legal personalities have produced outstanding literature.

Domat and Pothier, authors of the old regime before France adopted a system of codification of civil law, through their doctrinal works, promoted the unification of law.

Until the 18th century, France was subject to different codifications. With the Revolution, the law in France was unified, so that everyone could recognize it. Domat and Pothier worked to unify private law.

In Switzerland, Eugen Huber wrote an important work of doctrine with his book "History and System of Swiss Private Law": he systematically studied all methods and texts of Swiss law in order to draw general frameworks accepted by all. It is a question of establishing a uniform law that is accepted by all. It will unify the private legislation of all the cantons in order to codify private law through the Swiss Civil Code in 1912. To defend his work, he was Federal Councillor in Bern between 1911 and 1912.

Thus, doctrine has fully played its role as a direct source of law, today it plays an authoritative role. The influence of doctrine on the development of law cannot be denied.

General principles of law

The general principles of law constitute a set of guiding principles which, without having the precise and concrete character of the rules of positive law, serve as guidance in the application and development of the legal order.

Adages or brocades are proverbs of the law, legal maxims expressed in a concise sentence.

  • Adages: a short formula that often expresses a principle of law.
    • Audiatur et altera par: that both parties be heard;
    • Iura novit curia: the court knows the law;
    • In dubio pro reo: doubt benefits the accused;
    • Iustitia est constans et perpetua voluntas jus suum cuique tribuendi: justice is a constant and perpetual will to give everyone what is due to them;
    • Nonbis in idem: the judge may not be seised twice for the same case;
    • Nullum crimen sine lege: no crime without law;
    • Lex posterior derogat priori: the most recent law derogates from the previous law;
    • Lex specialis derogat generali: the special rule derogates from the general rule;
    • Pacta sunt servanda: commitments must be respected, i.e. good faith obliges the person who has undertaken to keep his commitment.
  • Brocades: it's a popularized adage in a popular form.
    • To the impossible no one is bound: the contract is null if its implementation is impossible;
    • The dead grabs the living: at the moment of death, the heirs are immediately invested with the estate;
    • The King and dead lives the King: this implies that there is no break in the reign, at the moment when the deceased died his heir begins his reign.

Allows the legal system to ensure a certain coherence and systematic unity in the middle of the disorder of positive rules.

These principles express the philosophical values on which the legal system of our Western States is based. They play a role in the interpretation of the law and serve, among other things, to fill gaps. However, these principles are not direct forms of law unless they have been enshrined in the Constitution.

In international law, there are a few principles that govern international law subjects, these are the Richier Principles, which are three basic principles of international law:

  1. principle of equality between States: it has equal weight in international conferences;
  2. independence of States: each State is in principle autonomous, it has full jurisdiction on its territory. He only suffers the restriction of power that he wants to accept (ex-France/Switzerland, the police forces of each country have the right to intervene on their mutual territories in the canton of Geneva, Ain and Haute-Savoie);
  3. principle of non-intervention also known as non-interference: as a result of the two previous principles, a State may not intervene in the internal affairs of another State (political, economic or military intervention).

There is a difference between the application and implementation of international law because in the western national state there is an executive, a legislative and a judicial branch. If there is a conflict, the judiciary will decide. There is a structure that makes it possible to defend security and public peace against the organization of international order.