The sources of law

De Baripedia

Based on a course by Victor Monnier[1][2][3]

Research into the sources of law from a sociological and philosophical perspective goes beyond the simple identification of legislative texts and judicial decisions. This approach considers that law emanates from the depths of social life, reflecting the customs, values, beliefs and practices of a community. In this view, legal norms are seen as a formalisation of existing social rules, illustrating how law emerges naturally from society rather than simply being imposed from outside.

Law is therefore seen as a dynamic phenomenon, constantly evolving with changes in social attitudes, economic structures and power relations. For example, changes in the perception of minority rights or attitudes towards the environment have led to new legislation and public policies. These changes show how the law can adapt and reformulate itself in response to society's new realities and demands.

This approach also highlights the complex interaction between law and society. The law is both a mirror of social norms and a tool for social change. For example, gender equality laws not only reflect a change in attitudes towards women, but also play an active role in promoting gender equality. Finally, the role of the various players in the legal system is crucial. Legislators, judges, lawyers and citizens themselves contribute to the interpretation and implementation of the law, often influenced by their own perspectives and interests. These actors shape the law through their actions and decisions, making the legal process not only an application of rules, but also an ongoing interaction between different viewpoints and interests within society.

The distinction between formal and substantive sources of law[modifier | modifier le wikicode]

The distinction between formal and substantive sources of law is essential to understanding how legal rules are created and the influences that shape them.

Formal, or direct, sources of law are the formal means by which legal rules are formulated and expressed. They include such things as legislation, where parliaments and other legislative bodies pass laws that define specific rights and obligations. Case law is another important formal source, involving court decisions that interpret and apply laws in concrete cases. These formal sources are binding and have direct legal authority, which means that they must be followed and applied by courts, governments and citizens.

On the other hand, the material, or indirect, sources of law represent the influences and factors that contribute to the creation and evolution of the content of law. These sources encompass a wide range of social, cultural, economic and political phenomena. For example, social movements, changes in public attitudes, economic developments, and political ideologies can all influence the creation of new laws or the modification of existing legislation. Material sources are not rules of law in themselves, but they play a crucial role in shaping the substance and matter of the law.

Formal sources represent the official and authorised way in which the law is established and expressed, while material sources are the various factors and influences that shape the content and evolution of the law. This distinction highlights the interaction between the formal legal structure and the wider social and cultural dynamics that influence the development of law.

The formal sources of law[modifier | modifier le wikicode]

The history of legal development shows that the nature and predominance of formal sources of law change according to the social and political organisation of societies.

In less organised or older societies, custom often played a central role as a formal source of law. Customs, which are practices and traditions accepted over time by a community, served as the main basis for legal rules. These rules were not written down, but were handed down and applied by tradition and social consensus. However, as societies have developed and become more organised, notably with the emergence of nation states and more complex political systems, the role of written law has become increasingly important. Modern systems of law are characterised by written rules of law, formulated and adopted by official legislative bodies. These written laws offer a number of advantages, including greater clarity, uniformity of application and the ability to adapt more easily to social and technological change.

In contemporary societies, written law has become the most dominant formal source of law. This does not mean that other sources, such as custom, have completely disappeared, but their role has become less central in most modern legal systems. This is because written law allows more precise and systematic regulation of social, economic and political relations in complex and rapidly changing societies.

The custom[modifier | modifier le wikicode]

Custom is an unwritten source of law that arises from repeated and well-established practices within a community. It becomes a legal rule when these practices are held by the community to be legally binding. This binding nature is the result of collective acceptance rather than written formalisation. Historically, in many societies, custom has played a central role in regulating behaviour. For example, in many rural communities, customs governed the use of agricultural land, the sharing of water, or the resolution of conflicts within the community. These rules were not written down, but were respected and followed as rigorously as written laws in modern societies.

In contemporary societies, although written law dominates the legal system, custom continues to play a role, particularly in areas where legislation is silent or ambiguous. In some cases, courts refer to customary practices to interpret legislation or to fill legislative gaps. For example, in international trade law, certain commercial standards and practices that have developed over time are often recognised and applied by the courts, even if they are not codified in treaties or statutes. Furthermore, in the context of international law, custom plays a significant role. Principles such as state sovereignty and diplomacy were largely governed by international custom before being codified in treaties. As a source of law, custom illustrates how legal norms can emerge organically from the practices and beliefs of a community. It shows that law is not just a set of rules imposed from above, but can also emerge from social interaction and conventions established within a society.

Custom, recognised as the oldest form of law, has long been the main source of law in many societies. Historically, particularly between the tenth and twelfth centuries, as Gilissen points out, custom represented the majority of sources of law in Western societies. This predominance was due to the absence of formal legal systems and the scarcity of written laws, making local traditions and practices crucial for regulating social behaviour and resolving disputes. However, with the advent of modern nation states and the development of formalised legal systems, the importance of custom has diminished considerably. Over the last two hundred years or so, written law has become the principal source of law, reflecting the needs of a rapidly changing society and the need for more precise and detailed legal regulation. For example, the adoption of civil and criminal codes in many European countries in the nineteenth century marked a watershed, with a shift from a legal system based on custom to one dominated by written law.

Nevertheless, custom was not completely ousted. It retains a significant role in certain areas and legal systems. In mixed legal systems, for example, it is recognised and used alongside written law. Similarly, in international law, customary norms continue to govern certain aspects of relations between states. Moreover, in certain local communities or among indigenous peoples, custom remains an essential basis of social and legal regulation. The diminishing role of custom in modern legal systems illustrates the evolution of the law over time, marked by a transition from a system based on traditional practices to one based on formally established and written laws. This evolution reflects the adaptation of the law to the complexities and changing demands of contemporary societies, while underlining the historical and continuing importance of custom in the overall understanding of the law.

Customs arise from the repeated practices of a specific group and are regarded as legally binding by the members of that group. They often play a crucial role in situations where written law is absent, ambiguous or inadequate. The dynamic nature of customs is a key aspect. They evolve in line with changes in the practices and beliefs of the group concerned. If a community's practices change over time, the customs associated with those practices may also change. This process allows customs to remain relevant and adapted to the current social realities of the community.

Customs can also disappear, either through explicit repeal or through obsolescence. Abrogation occurs when a new written law comes into conflict with a custom and officially annuls it. Desuetude occurs when the practice underlying a custom is no longer observed or recognised by the community, rendering the custom obsolete. For example, in many rural societies, customs governed the joint management of land and natural resources. With urbanisation and the introduction of formal laws on land ownership and use, these customs have often been replaced or modified to adapt to new legal and social realities. This ability of customs to adapt, evolve or disappear underlines their organic nature and their close link with the practices and needs of a community. Although in modern legal systems written law predominates, customs continue to play an important role, particularly in areas where legislation is less detailed or in communities where traditions have a strong influence.

The constituent elements of custom in law are essential to understanding its development and its recognition as a legal source. A key aspect is long usage, which requires a practice to be followed on a prolonged and repeated basis, usually over a considerable period such as forty years. This durability ensures that the practice is not simply a passing trend, but an integral and recognised part of the community's behavioural norms. For example, in some rural communities, traditional methods of water sharing or land management, practised over several generations, have acquired the status of legal customs. At the same time, opinio necessitatis, or the belief that the use of custom is obligatory, is also crucial. This belief reinforces the idea that the practice is not simply a habit, but is legally binding. Community members adhere to custom not by choice, but because they believe they are legally obliged to do so. This perception transforms a simple social practice into a customary rule with legal force. A concrete example could be found in marriage or inheritance practices in certain cultures, where traditions are followed not only out of respect for custom, but also because they are seen as legal obligations.

These elements, long usage and opinio necessitatis, interact to elevate habitual behaviour to legal status. They highlight how practices that are regularly observed and deeply rooted in a community can evolve to become recognised components of the legal system. This transformation of social practices into rules of law underlines the organic and community-based nature of custom as a legal source.

As a source of law, custom is distinguished by its origin and its adaptation to the customs of the community from which it emanates. It reflects the will of the people and changes as social and cultural practices evolve. This gives it a dynamic and flexible character, enabling it to be closely aligned with society's current values and needs. However, the oral nature of custom and the lack of formal documentation can pose challenges in terms of legal certainty. Unlike written laws, whose wording and application are clearly set out in official texts, customs often depend on oral transmission and collective interpretation. This makes their existence and precise parameters sometimes difficult to determine. In legal proceedings, it is generally up to the party invoking a custom to prove its existence and application. This need for proof can complicate the use of custom, especially in situations where customary practices are not widely recognised or where there is disagreement over their interpretation. Despite these challenges, judges are expected to know the law, according to the principle of "iura novit curia" (the court knows the law). This principle means that judges are supposed to be aware not only of the written laws, but also of the customs applicable in their jurisdiction. They are therefore able to interpret and apply custom in the absence of specific written legislation or to clarify points of law not resolved by the law.

The law can be seen as a crystallisation or written formalisation of the experience and practices acquired through custom. In many cases, written laws emerged to codify and standardise customary practices that were already in place, bringing greater clarity and uniformity. In the modern era, the role of custom in legal systems has been relegated to a secondary position, mainly because of the predominance and precision of written laws. Custom often comes into play where written law is silent, vague or incomplete. In such cases, customary practice may serve as a guide to interpret or fill in the gaps in the law. For example, in some areas of international law, in the absence of formal treaties or agreements, customary international practice can play a significant role. However, custom is not limited to a subsidiary role. In some jurisdictions, particularly those which follow a mixed law system or which recognise the rights of indigenous peoples, custom may have a more prominent place. Moreover, in areas such as international trade law, certain customary commercial practices are widely accepted and applied, even in the absence of formal legislation.

Article 1 of the Swiss Civil Code, promulgated on 10 December 1907, offers a fascinating insight into how the Swiss legal system approaches the application and interpretation of the law. First and foremost, this piece of legislation establishes the primacy of the law by stipulating that all matters must be governed by legal provisions, whether explicitly stated or understood in the spirit of the law. This underlines the fundamental importance of written law in the Swiss legal order, reflecting a clear preference for clear, formulated directives. However, Article 1 also recognises situations where written law does not provide a direct answer to a legal problem. In such cases, it gives judges the responsibility to turn to customary law. If no applicable custom exists, the judge is then invited to make a decision based on the principles he would have used if he had the role of legislator. This provision gives Swiss judges great latitude and responsibility to interpret the law and fill in any gaps, based on their understanding of the fundamental principles of justice and equity.

The article also emphasises the importance of doctrine and case law. Judges are encouraged to draw on academic work and previous judicial decisions to guide their decisions. This ensures that decisions are not taken in a vacuum, but are based on an established body of legal knowledge and precedents. The approach of Swiss law, as reflected in this article, illustrates a balance between the rigour of written law and the flexibility needed to deal with situations where the law is silent, ambiguous or incomplete. It shows how a legal system can effectively combine various sources of law to ensure that justice is done consistently and fairly.

The concept of customary law in the Swiss Civil Code of 1912 reflects an approach specific to the federal nature of Switzerland. Customary law, in this context, is understood as a set of legal practices and norms that have a scope at the level of the Swiss Confederation. This means that when a judge uses customary law to decide a case, he or she is applying customs that are recognised and observed throughout Switzerland. This approach is particularly relevant given Switzerland's federal structure, where different cantons have different legal systems and traditions. Customary law at federal level therefore serves as a common frame of reference that can be used by judges throughout the country. However, it is essential that these customs do not conflict with regional specificities. In other words, the customary law applied must not conflict with practices or laws specific to a particular region of Switzerland. This system allows a degree of uniformity in the application of the law while respecting local particularities. It reflects the balance between national unity and regional diversity, a fundamental principle of Swiss governance. By recognising customary law at federal level, the Swiss Civil Code of 1912 facilitates an application of the law that is both nationally consistent and sensitive to cantonal specificities.

Historically, in many legal systems, custom has often served as the basis for formal laws. This process occurs when the practices and norms that have emerged and become established within a community are finally codified in the form of written laws. This phenomenon can be observed in various legal and historical contexts. For example, in ancient or traditional societies, the rules governing trade, property, marriage or inheritance were initially based on local customs. Over time, these customary practices were formalised and incorporated into systems of written law to ensure greater consistency, clarity and accessibility.

The transformation of custom into written law has several advantages. It allows for greater standardisation of legal rules, making them easier to understand and apply. Furthermore, by formalising these practices, written law can offer clearer and fairer legal protection, by ensuring that the rules are applied uniformly. However, this process of codification does not mean that custom loses all relevance. In some cases, written law may leave room for the interpretation and application of custom, particularly in areas where the legislation is silent or insufficiently detailed. Moreover, even after codification, customs may continue to influence the interpretation and application of laws, particularly in legal systems that recognise the value of local traditions and practices. The relationship between custom and law is dynamic and interdependent. Custom can often pave the way for the creation of written law, but it also continues to play a role in the development and application of law, even in modern societies where written law predominates.

The law[modifier | modifier le wikicode]

The law is a central element of modern legal systems, and fulfils several key functions. The law is characterised by its generality and abstraction, which means that it is designed to apply to a wide range of situations and people, without being limited to individual or specific cases. This generality allows the rules to be applied uniformly in similar circumstances, thus ensuring fairness and predictability in the legal system. As a source of law, the law lays down rules, obligations and prohibitions. It establishes standards of behaviour that individuals and organisations are required to follow, and sets out the legal consequences for failure to do so. For example, laws may regulate areas as diverse as commerce, road traffic, property rights or contractual relations, and they may impose obligations such as paying taxes or complying with environmental standards.

Laws are usually created and adopted by legislative bodies, such as parliaments or legislative assemblies, and represent the authority of the State. Once adopted, the law must be respected by all members of society, and its application is generally ensured by the judicial system and the State's enforcement bodies. In this way, the law plays a fundamental role in structuring society, establishing a clear framework for rights and obligations, and providing a mechanism for resolving conflicts and maintaining social order. Its general and abstract nature enables it to be an effective instrument of governance, adaptable to the changes and needs of society.

The distinction between law in the substantive sense and law in the formal sense is fundamental to understanding the nature and application of law in modern legal systems.

Law in the substantive sense refers to any act that sets out a rule of law or a set of rules of law. This concept focuses on the content of the legislative act, i.e. the nature of the rules it prescribes. A notable example is the United Nations Charter, which establishes rules and principles governing international relations. This type of law can be enacted by various bodies, provided they are competent and act in accordance with due process.

On the other hand, law in the formal sense focuses on the procedure for drafting the legislative act. The emphasis is not on the content of the law, but on the way in which it was created, in compliance with the required forms and conditions. This concept, which originated in the revolutionary period of the eighteenth century, is based on the idea that the law must be the work of the sovereign people or their representatives. It reflects the notion that a free man obeys laws that he sets himself, as opposed to a slave who is subject to the law imposed by a despot. In this context, law in the formal sense is that which emanates from a legislative body, such as parliament at national or federal level, a grand council at cantonal level, or a communal council at local level. These are laws created by an elected and representative body, expressing the will of the people.

This distinction between law in the substantive sense and law in the formal sense is crucial to the interpretation and application of the law, as it underlines both the importance of the content of the law and the legitimacy of the process by which it is made. It ensures that laws are not just arbitrary rules, but norms that reflect the collective will and are adopted according to democratic and transparent procedures.

An interesting feature of the Swiss legal system is that the creation of rules of law is not the exclusive responsibility of Parliament. In Switzerland, the executive, although not a legislative body in the formal sense, plays an important role in drawing up legal rules. In many cases, the Swiss executive has the power to enact rules that have the character of law in the substantive sense. This means that, even if these rules are not adopted through the formal legislative process, they prescribe obligations, rights or standards of conduct similar to those that would be found in a formal law. This executive power is often exercised in the form of regulations, orders or directives. This practice reflects a pragmatic approach to governance, where the executive can respond more flexibly and quickly to needs and situations that do not necessarily require formal legislation by Parliament. This may be particularly relevant in technical or specific areas where detailed expertise is needed, or in emergency situations where rapid responses are required.

It should also be noted that the majority of legal rules in Switzerland are enacted by the executive. This highlights the substantial role played by the executive in day-to-day regulation and in the implementation of public policy. However, although the executive plays a crucial role in the creation of legal norms, the Swiss system maintains a balance between the different powers of the state. The formal laws passed by Parliament provide the general framework within which the executive operates, and the possibility of legal recourse ensures that the exercise of this power remains consistent with the principles of the rule of law.

Article 182 of the Federal Constitution of the Swiss Confederation provides a clear framework for the role of the Federal Council in the legislative process and in the implementation of the law. This constitutional provision authorises the Federal Council to create legal norms in the form of ordinances, but this ability is strictly circumscribed: it must be expressly permitted by the Constitution or a law. This approach ensures that, although the Swiss executive is actively involved in drawing up legal rules, it does so within the limits set by the higher legal instruments. For example, if a federal law specifically delegates to the Federal Council the power to specify certain technical or administrative aspects by ordinance, then the Federal Council can legitimately exercise this function.

In addition to its delegated legislative role, the Federal Council is also responsible for ensuring the effective application of legislation, decisions of the Federal Assembly and judgements of the federal judicial authorities. This involves an active commitment to enforcing the laws and ensuring that they are applied in practice and uniformly across the country. This responsibility is crucial to ensuring that laws and judicial decisions do not remain a dead letter, but are implemented, which is essential for the effective functioning of the rule of law.

The provision in Article 182 therefore illustrates the way in which the Swiss legal system balances legislative and executive functions. It reflects Switzerland's federal and democratic structure, where power is shared and regulated to avoid abuse and to ensure that all branches of government act within their legitimate competences. This system ensures not only the creation of appropriate and specific rules of law, but also their effective implementation, both of which are fundamental to stability and justice in Swiss society.

Article 163 of the Federal Constitution of the Swiss Confederation defines the form that acts enacted by the Federal Assembly must take, drawing a distinction between federal laws, ordinances and federal decrees.

According to this article, when the Federal Assembly, which is Switzerland's supreme legislative body, establishes provisions that lay down rules of law, these must be formulated either in the form of a federal law or in the form of an ordinance. The choice of form depends on the nature and importance of the regulation in question. Federal laws are generally used for matters of broad scope or principle, while ordinances may be used for more specific or technical regulations. The second paragraph of this article deals with federal decrees, which are another form of legislative act. These decrees can be divided into two categories: federal decrees subject to referendum and simple federal decrees that are not. Federal decrees subject to referendum are typically acts of particular importance that can be put to a popular vote. Simple federal decrees, on the other hand, are generally used for decisions or measures that do not require direct consultation of the population. This structuring of the form of legislative acts reflects Switzerland's democratic and federal system, where different forms of legislative act are used depending on their importance and scope. This allows great flexibility and adaptability in the legislative process, while ensuring that the Swiss people are involved in major political decisions, in accordance with the principles of direct democracy.

The nature of the decrees issued by the Swiss Parliament highlights an important distinction in the hierarchy and function of the different types of legislative acts. Unlike a law or ordinance, a decree is not generally general and abstract in nature, which distinguishes it from a traditional rule of law. Decrees issued by the Federal Assembly in Switzerland are often used for specific decisions or actions. They may concern a variety of subjects, such as the approval of an international treaty, a decision on a specific budget or expenditure, or measures relating to a particular situation. Unlike federal laws or ordinances, which are designed to apply uniformly to a wide range of situations and individuals, orders tend to be detailed and targeted.

That said, the fact that an order is not general and abstract does not diminish its importance. Orders made by Parliament are significant legal acts and can have a considerable impact on specific aspects of governance or policy. For example, a federal decree approving an international treaty commits Switzerland on the international stage, although it does not create general rules applicable to the entire Swiss population. This distinction between laws (general and abstract) and decrees (more specific and detailed) is an essential feature of the Swiss legislative system, reflecting its complexity and its ability to meet a wide range of legislative and political needs.

The distinction between laws in the substantive sense and laws in the formal sense, as far as decrees issued by the Swiss Parliament are concerned, is crucial to understanding the nature of these legislative acts. Although a decree is not a law in the substantive sense (because it does not lay down general, abstract rules of law), it can be considered a law in the formal sense because of its origin. As it is enacted by Parliament, an official legislative body, the decree acquires formal legitimacy. This formal character refers to the procedure and body through which the act is adopted, rather than its content or application.

This distinction is important in the Swiss legal system. It shows that even if a decree does not create general legal rules applicable to everyone, it is nevertheless an important legal act because of its source: Parliament. This highlights the diversity of legislative tools available to the Swiss Parliament to meet the different requirements of governance, whether to adopt general rules (laws in the substantive sense) or to take decisions on specific issues (decrees). This approach allows flexibility in the legislative process, where different types of acts can be used depending on needs and circumstances, while ensuring that all acts are subject to a democratic and legitimate process.

The majority of laws in the formal sense, i.e. acts adopted by Parliament or a formal legislative body, are also laws in the substantive sense, in that they establish general and abstract rules of law applicable to a wide range of situations. With the exception of certain federal decrees, which may be formally adopted by Parliament without necessarily establishing general rules of law, most formal laws are also material. However, the reverse is not always true. Not all laws in the substantive sense, i.e. norms that lay down rules of law, are necessarily laws in the formal sense. In other words, rules of law may be established by means other than formal legislation by Parliament. These rules may come, for example, from ordinances or directives issued by the executive, such as the Federal Council, as part of their delegated powers. Although they establish rules of law (hence material), they are not adopted through the formal legislative process (hence not formal). This distinction between laws in the formal and substantive sense is important because it reflects the diversity and complexity of the process of creating rules of law. It shows how different branches of government can contribute to the development of the legal framework, allowing for a division of labour between legislative and executive bodies, and ensuring flexibility in adapting and responding to varying legal requirements and challenges.

The material sources of law[modifier | modifier le wikicode]

The case law[modifier | modifier le wikicode]

Case law, which encompasses all the decisions handed down by the courts and other authorities applying the law, is a fundamental element of the legal system. It includes not only the verdicts and rulings issued by these bodies, but also the principles, reasoning and solutions adopted in these decisions.

A crucial aspect of case law is its role in interpreting the law. Through their decisions, the courts clarify and give meaning to legislative texts, sometimes interpreting them in such a way as to respond to complex or novel cases. For example, a supreme court may interpret a constitutional provision in such a way as to resolve a conflict of rights, thereby influencing the way in which the provision will be applied in the future. In addition, case law is used to create precedents, particularly in common law systems, where the decisions of the higher courts form a basis on which the lower courts base their own judgments. This system of precedents ensures the consistency and stability of the law, by ensuring that similar cases are treated in a similar way.

Case law also plays an essential role in filling legislative gaps. In situations where the law is silent or ambiguous, the courts can develop appropriate legal solutions. For example, when faced with emerging issues relating to technology or privacy, the courts can interpret the law in such a way as to protect the rights of individuals in an evolving context. Finally, judicial decisions can reflect and influence social values and norms. Courts, in interpreting and applying the law, often adapt the law to changing social attitudes. Historical decisions on civil rights and individual freedoms illustrate how case law can both reflect and guide social change. Case law, as a body of judicial decisions, is a dynamic and living source of law. It represents an accumulation of legal knowledge and plays a vital role in the ongoing development and adaptation of the legal system in the face of new and complex challenges.

Case law, which is made up of the sentences and judgments handed down by the courts, is a living and evolving source of law. It is particularly crucial in situations where there are no written rules of law specifically applicable to a given case. When a judge is faced with a case where written law is absent or insufficient, he or she often turns to case law for guidance. This involves looking for previous decisions made by other judges in similar cases. These precedents provide a frame of reference and help to ensure consistency in the application of the law. For example, a judge dealing with a civil liability case might look to previous decisions to determine how to assess negligence or damage.

However, case law is not rigid. A key aspect of its use is the judge's ability to depart from previous decisions if the circumstances of the current case warrant it. If a judge considers that the conditions or circumstances of a current case differ significantly from those of previous cases, or if new legal, social or technological developments make it necessary, he or she may choose to rule differently. This flexibility is essential to enable the law to adapt and evolve with the times and changes in society. Case law, as such, is a balance between continuity and adaptation, providing a stable legal framework while allowing for necessary adjustments to respond to emerging challenges and changing circumstances. This demonstrates the dynamic nature of the law and the crucial role of judges in its interpretation and development.

The term "precedent-setting" is used when a court decision is considered to set an important precedent that may influence future decisions in similar cases. This concept is fundamental to the operation of the legal system, particularly in countries where case law plays a predominant role. In Switzerland, although the legal system is not based on common law (where case law plays a central role), court decisions, particularly those of the high courts, are of significant importance. These rulings, often referred to as "jurisprudential solutions", serve as a guide to the interpretation and application of laws. They can shed light on grey areas in legislation or provide guidance on how to deal with complex legal cases.

Praetorian solutions, a term that originated in the Roman legal system, refer to decisions made by judges (praetors in ancient Rome) who, in the absence of specific laws, created rules to resolve disputes. In the modern context, the term is sometimes used to describe judicial decisions that establish new principles or interpret the law in innovative ways. In Switzerland, as in other legal systems, case law and praetorian solutions play a crucial role in the development and adaptation of the law. Not only do they make it possible to fill legislative gaps, they also help to adapt the legal system to social and technological developments, thereby ensuring that the law remains relevant and effective.

The doctrine[modifier | modifier le wikicode]

Doctrine refers to all opinions, analyses, interpretations and commentaries on the law expressed by jurists, academics, researchers and legal practitioners. These individuals devote themselves primarily to the study, teaching or practice of law, and their work contributes significantly to the understanding and development of the law. Doctrinal contributions take many forms, including articles in law journals, books, commentaries on legislation or case law, and reviews of judicial decisions. These writings are often used to explore complex legal issues, propose interpretations of the law, criticise or support judicial decisions, and suggest improvements or reforms to the legal system. Although legal doctrine is not a binding source of law like statute law or case law, it plays an important role in the development of the law. Doctrinal works often influence legislation, case law and the formation of public policy. They also serve as a valuable resource for lawyers, judges and law students, providing in-depth analysis and informed perspectives on various aspects of the law.

The increased production of legislative texts is accompanied by an increase in the volume of doctrinal works. Doctrinal writers are increasingly seeking to keep pace with rapid legal developments and to respond to the immediate questions posed by these changes. This focus on immediacy has significant implications. On the one hand, it ensures that legal doctrine remains relevant and directly applicable to contemporary issues. Lawyers, practitioners and decision-makers have access to analyses and commentaries that reflect the current state of the law and emerging legal challenges. On the other hand, this focus on current issues can reduce the ability of legal doctrine to offer a long-term perspective. When work focuses primarily on immediate issues or rapid responses to new legislation, there may be a lack of global vision and deep reflection on underlying trends and principles. This lack of perspective can limit the ability of legal scholarship to provide a holistic and balanced understanding of the law, which is crucial to its thoughtful development and long-term coherence. It is therefore important for legal doctrine to strike a balance between responsiveness and long-term vision. While it is essential to respond to current challenges, it is also important to maintain a global perspective that enables the law to be understood in its wider context and to make a significant contribution to its evolution and understanding.

Legal doctrine, an essential pillar of the study and application of the law, is made up of various types of works, each playing a unique role in the dissemination of legal knowledge. At the heart of the legal literature are treatises, comprehensive works that provide a systematic examination of a specific branch of law or field. A treatise on constitutional law, for example, would cover in detail the fundamental principles, case law and relevant theories. These works are often regarded as essential references in their field. Textbooks or manuals, on the other hand, are sub-categories of treatises, but with a more synthetic and pedagogical orientation. Intended primarily for teaching purposes, they provide a clear, structured introduction to an area of law, making the subjects accessible, particularly to students. A civil law textbook, for example, would present the basic concepts and rules of this branch of law in a concise manner. The commentary, another type of doctrinal work, focuses on the analysis of a specific court decision, law or doctrinal text. For example, a commentary on a Supreme Court decision might explore the implications of the decision, discuss its context and analyse its impact on future case law. Monographs deal with specific legal issues in depth. These studies, often doctoral dissertations or post-doctoral research, may explore specialised or emerging legal topics. For example, a monograph might look at the legal implications of artificial intelligence. Articles, which are generally shorter, can be found in specialist journals or collective works. They often deal with contemporary or specific legal issues, offering targeted analyses of aspects of the law. An article in a commercial law journal might, for example, discuss recent developments in contract law. Finally, official editions of legal texts, such as law reports, are often accompanied by commentaries and analyses. These publications are crucial to understanding the text of the law in its context, providing clarifications and explanations.

The diversity of doctrinal publications plays a crucial role in enriching the legal landscape. Each type of publication brings its own perspective and depth of analysis, making a significant contribution to the understanding and development of the law. Treatises, with their exhaustive coverage of an area of law, provide a solid foundation of knowledge, offering an in-depth understanding of principles and theories. Textbooks and manuals, on the other hand, make the law accessible to a wider audience, particularly students, by presenting concepts in a structured and pedagogical way. Commentaries, by focusing on specific judicial decisions or legislative texts, help practitioners and academics to understand and interpret the implications of these decisions in practical contexts. Monographs address targeted legal issues, often exploring new frontiers or offering innovative perspectives on complex subjects. Law review articles provide an ongoing dialogue on current legal issues, stimulating debate and reflection. Official editions of legal texts, supplemented by expert commentary, are invaluable resources for understanding current law and its application. Together, these different forms of doctrinal publication form a rich and dynamic ecosystem that fuels the development of the law. They provide an essential basis for legal decision-making, legal education, research and legislative reform, playing an indispensable role in the perpetuation and evolution of the legal system.

Today, legal doctrine is widely recognised as an authority on the law, providing analyses, interpretations and commentaries that influence the understanding and application of the law. Although it is not a binding source of law in the same way as legislation or case law, its influence is undeniable in shaping judicial decisions, legislative policy and legal practice. Historically, doctrine has played an even more direct role in the creation of law. In certain periods and jurisdictions, the writings of jurists and legal theorists were considered to be formal sources of law. For example, during the Renaissance in Europe, jurists' commentaries and interpretations of Roman law were often treated as legitimate sources of law, directly influencing judicial decisions and legal practice. These doctrinal works were sometimes so respected that they were cited by judges as almost authoritative authorities. Today, although doctrine is not formally recognised as a source of law, its role remains essential. It helps to clarify and guide the interpretation of the law, offers critical perspectives on case law and contributes to the discussion and evolution of legal concepts. Doctrinal work continues to play a key role in the education and training of lawyers, and in the way the law is understood, taught and practised.

In ancient Rome, legal doctrine played a dominant role in the formation and application of the law. Roman jurists, highly respected for their expertise and knowledge, wrote opinions, treatises and commentaries on Roman law. These writings were regarded as authoritative and direct sources of the law. The Digest, compiled by order of the emperor Justinian in the sixth century, is a prime example of this practice. It formed part of the Corpus Juris Civilis, a massive collection designed to consolidate and systematise Roman law. The Digest in particular was a compilation of extracts from the writings of the most eminent Roman jurists. These extracts were carefully selected and organised to form a coherent body of legal principles. The opinions and analyses of Roman jurists included in the Digest were treated with great authority and were often regarded as equivalent to laws. Indeed, in the Roman legal system, the distinction between 'law' (official statutes) and 'doctrine' (the writings of jurists) was much less rigid than it is in most modern legal systems. Thus, in Roman antiquity, legal doctrine did not merely influence the law indirectly; it was an integral and formal component of the law, playing a crucial role in defining and interpreting legal norms. This shows how, historically, the boundary between 'law' and 'doctrine' could be fluid, and highlights the essential role played by jurists in shaping the law.

Over the centuries, numerous jurisconsults and eminent legal figures have left an indelible mark on the legal world through their writings and analyses. These influential figures have produced a body of literature that has helped to shape, develop and illuminate the law throughout different eras and societies. In ancient Rome, jurists such as Gaius, Ulpian and Papinian wrote treatises and commentaries that formed the basis of Roman law. Their work was so influential that it was widely cited in the Corpus Juris Civilis, particularly in the Digest, and continued to influence European civil law for centuries. In the Middle Ages, the rediscovery of Roman legal texts led to a revival of legal scholarship. Scholars such as Gratian, with his "Decretum", played a crucial role in the development of canon law, while others contributed to the revival of civil law in Europe. In the Renaissance and beyond, jurists such as Hugo Grotius in the Netherlands pioneered the development of international law, while figures such as Sir William Blackstone in England influenced the common law with works such as Commentaries on the Laws of England. More recently, in the nineteenth and twentieth centuries, jurists such as John Austin, Hans Kelsen, and H.L.A. Hart have made important contributions to legal theory, influencing the way law is understood and taught in universities around the world. Each of these figures helped shape the legal landscape of their time, bringing fresh perspectives, developing influential theories, or interpreting the law in ways that have had a lasting impact. Their work not only enriched the legal understanding of their time, but continues to influence contemporary legal thought and practice.

The contributions of jurists such as Jean Domat and Robert Joseph Pothier during the Ancien Régime in France are outstanding examples of the influence of legal doctrine on the unification and systematisation of the law. Before France adopted a system of codification of civil law with the Civil Code of 1804 (also known as the Napoleonic Code), the legal landscape was fragmented and complex, marked by a multitude of local customs and legal rules. Jean Domat, a seventeenth-century jurist, is best known for his work "Les Lois Civiles dans leur ordre naturel" and "Le Droit Public". These works sought to organise and explain civil law on the basis of the principles of Roman law. Domat attempted to rationalise the law by presenting it in a systematic and logical way, which was of great help in understanding and applying civil law at the time. Robert Joseph Pothier, an eighteenth-century jurist, is famous for his many treatises on different branches of civil law, such as contract law, property law and obligations. His writings were deeply influenced by Roman law and were widely recognised for their clarity and rigour. Pothier was one of the most influential jurists of his time, and his work had a considerable impact on the subsequent development of civil law, not only in France but also in other countries. The work of these jurists greatly influenced the codification of French civil law. Their efforts to systematise and clarify the law paved the way for the adoption of the French Civil Code, which revolutionised civil law by establishing a coherent and unified body of law. The Civil Code has had a major influence not only in France, but also in many other countries, and is considered to be one of the most important legal achievements of the modern era.

Before the Revolution, France was characterised by a great diversity of local legal systems. This diversity stemmed from the existence of different regional customs and the application of Roman law to varying degrees across the country. This situation made the law complex and often difficult to navigate, especially for those who were not experts in the field. With the French Revolution at the end of the eighteenth century, there was a move towards the unification and rationalisation of the law. The Revolution aimed to establish a more coherent and accessible legal system, reflecting the ideals of equality and rationality that were at the heart of revolutionary aspirations. One of the most significant results of this movement was the creation of the French Civil Code, later known as the Napoleonic Code, in 1804. This code unified private law in France, replacing the various local customs with a single coherent body of law. Jean Domat and Robert Joseph Pothier played a crucial role in this process of unifying private law. Their work, strongly influenced by the principles of Roman law, sought to systematise and rationalise civil law. Although their works preceded the French Revolution, they provided an intellectual and theoretical basis for the law reformers of the Revolution and the Napoleonic era. In particular, Pothier's influence is often acknowledged in the formulation of the Civil Code, his treatises having served as major references in the development of this historic codification. Thus, the unification of law in France at the turn of the nineteenth century, influenced by figures such as Domat and Pothier and catalysed by the French Revolution, marked a decisive turning point in legal history, laying the foundations of the modern French legal system.

Eugen Huber.

Eugen Huber's work in the Swiss legal context is remarkable and played a central role in the unification and codification of Swiss private law. Prior to Huber's intervention, Switzerland, with its federal system made up of numerous cantons, had a mosaic of local legal systems. This diversity reflected the historical tradition of cantonal autonomy, but presented challenges in terms of legal coherence and uniformity. Eugen Huber, an eminent jurist, undertook an exhaustive systematic study of the different legal systems and texts in force in the Swiss cantons. His major work, "Histoire et système du droit privé suisse", was a significant contribution to the unification of private law in Switzerland. In it, he analysed and synthesised the common legal principles and accepted practices across the cantons, seeking to create a unified legal system that could be widely accepted. The culmination of his work was the Swiss Civil Code (Zivilgesetzbuch), promulgated in 1912. This code unified private law across Switzerland, replacing the various cantonal laws with a single coherent set of rules. Huber's codification was a major milestone in Swiss legal history, providing much-needed stability and predictability, while respecting Switzerland's particularities and cultural diversity. Recognition of the importance of Huber's work was underlined by his tenure as a Federal Councillor in Berne between 1911 and 1912. During this period, he was able to defend and promote the adoption of the Civil Code, playing a key role in modernising the Swiss legal system and establishing a unified legal framework for private law in the country.

Historically, doctrine has often played a role as a direct source of law, as in the case of Eugen Huber in Switzerland, whose doctrinal work directly influenced the drafting and promulgation of the Swiss Civil Code. Such contributions illustrate how, at certain times and in certain contexts, the writings and analyses of legal scholars have been significantly integrated into the very structure of the law. Today, although legal doctrine is not a binding source of law in the same way as legislation or case law, its influence as an authority in the legal field remains substantial. Doctrinal works provide interpretations, criticisms and perspectives that inform and guide the application and development of the law. They are an essential resource for legislators, judges and legal practitioners, providing in-depth analyses and critical assessments of legislation and judicial decisions. The influence of legal scholarship can be seen in the development of new legislation, the interpretation of existing legislation, the formation of case law and the evolution of legal principles. By reflecting on the law and questioning and analysing its principles and application, legal scholars make an ongoing contribution to the development of a dynamic, adaptive and thoughtful legal system.

The general principles of law[modifier | modifier le wikicode]

The general principles of law constitute a set of guiding principles that play a crucial role in the orientation and interpretation of the legal system, although they lack the precision and detail of the rules of positive law. The general principles of law serve as a guide in the application and development of the law. They provide a conceptual and ethical framework that underpins and informs positive law, i.e. formally adopted laws and regulations. These principles include, for example, concepts such as fairness, justice, good faith, equality before the law, respect for human rights, and proportionality. These principles are particularly important in situations where existing laws are vague, incomplete or absent. In such cases, judges and lawyers can refer to the general principles to interpret legislation or to fill legal gaps. These principles are also used to assess the validity and application of existing laws, ensuring that they are consistent with the fundamental values of the legal system. For example, in the field of international law, general principles of law play a fundamental role, as they help to fill gaps where international treaties or customary law are silent. Similarly, in constitutional law, general principles are often invoked to interpret constitutional provisions and to guide the application of fundamental rights and freedoms. General principles of law are essential to ensure that the application and development of the law are guided not only by technical rules, but also by ethical considerations and universally recognised values. They contribute to the coherence, legitimacy and fairness of the legal system as a whole.

Adages or brocades are legal proverbs, or maxims expressed in a concise sentence. These expressions, often formulated in a concise and memorable way, summarise fundamental legal principles or rules of law. They are used to synthesise complex legal concepts into succinct, easily understood sentences, and play a significant role in the teaching, practice and interpretation of law. Legal adages are often derived from Roman law and the European legal tradition, although many legal cultures have developed their own maxims. They have been used historically to transmit key legal principles from one generation to the next, particularly in times when the majority of legal practitioners and citizens did not have access to voluminous or complex legal texts.

Adages are brief formulas, often in Latin, that summarise fundamental legal principles. These maxims offer a concise and memorable way of communicating complex legal concepts, and have played an important role in the transmission and teaching of law throughout history. Legal adages, with their roots in the Roman legal tradition, have become an integral part of the teaching and practice of law in many legal cultures. They serve not only to educate law students and professionals about essential principles, but also to guide the interpretation and application of the law in judicial practice. Because of their concise nature and historical origin, these maxims are often quoted in court decisions, legal debates and academic writings, continuing to influence the understanding and application of contemporary law.

The following adages are classic examples of legal maxims that play an essential role in the understanding and application of the law. Each of these Latin adages expresses a fundamental legal principle in a concise and memorable way:

  • Audiatur et altera pars: This principle means that both parties must be heard. It underlines the importance of fair justice and the right to a fair trial, where each party has the opportunity to present its case.
  • Iura novit curia: The court knows the law. This maxim indicates that the courts are expected to know the law and apply it correctly, even if the disputing parties do not know or fully understand it.
  • In dubio pro reo: In case of doubt, the benefit goes to the accused. This principle is at the heart of criminal law and means that where there is doubt about guilt, the decision should favour the accused.
  • Iustitia est constans et perpetua voluntas jus suum cuique tribuendi: Justice is the constant and perpetual will to give everyone his due. This principle highlights the fundamental aim of justice, which is to ensure that everyone receives what is justly due to them.
  • Nonbis in idem: This principle means that a person cannot be tried twice for the same offence. It is a key component of criminal law, preventing double prosecution or double punishment.
  • Nullum crimen sine lege: No crime without law. This principle states that an action can only be considered criminal if it was defined as such by the law before it was committed.
  • Lex posterior derogat priori: The most recent law prevails over previous laws. This principle is used to resolve conflicts between successive laws, giving priority to the most recent provisions.
  • Lex specialis derogat generali: The special rule prevails over the general rule. This principle is applied when there is a conflict between a general rule and a specific rule, in which case the specific rule takes precedence.
  • Pacta sunt servanda : Agreements must be respected. This principle, which is fundamental to contract law, emphasises that the parties are obliged to respect the agreements they have made.

These adages summarise complex legal concepts in an accessible way and are a testament to the wisdom and insight of the jurists and legislators who have shaped the law over the centuries. They continue to be relevant in contemporary legal practice, guiding the interpretation and application of the law.

Brocades are a form of adage, but they tend to be presented in a more accessible and popular form. Whereas legal adages are often formulated in Latin and can sometimes be obscure to non-specialists, brocades are generally designed to be more easily understood by a wider audience. Brocades retain the concise and memorable character of adages, but their presentation and language tend to be less formal and closer to popular expression. They aim to make legal principles more accessible to the general public, without the use of complex legal terminology or Latin formulations. These expressions play an important role in democratising knowledge of the law, by making legal concepts more accessible and understandable to those who are not legal experts. Thus, while sharing the function of traditional adages of summarising legal principles, brocades do so in a way that is often more rooted in everyday language and culture.

The following brocades are examples that illustrate legal principles in a concise and memorable way:

  • This brocade highlights an important principle of contract law. It means that if performance of a contract becomes impossible for reasons beyond the control of the parties, the contract may be annulled or considered null and void. This principle is fundamental to ensuring fairness in contractual obligations, recognising that parties cannot be held liable for unforeseeable or uncontrollable events that make performance of the contract impossible.
  • The dead seize the living: This brocade applies in the context of inheritance law. It expresses the idea that when a person dies, his heirs or legal successors are immediately vested with his estate. This means that the property, rights and obligations of the deceased are transferred to his or her heirs without interruption.
  • Le Roy est mort, vive le Roy: This brocade, which comes from the monarchical tradition, illustrates the principle of the continuity of the crown. It indicates that on the death of the king, his successor immediately becomes king. This principle ensures a smooth transition without a power vacuum, underlining the continuity and stability of the monarchical system.

These adages and brocades summarise legal concepts in an accessible way and are used to communicate fundamental legal principles to a wider audience, making the law easier to understand.

General principles of law play an essential role in organising and understanding the law, particularly in systems where positive rules (i.e. specific laws and regulations) can be numerous, complex and sometimes even contradictory. The general principles of law serve as a basis for interpreting and applying positive rules. They provide a conceptual framework for understanding how different rules interact and apply. These principles include, for example, concepts such as justice, fairness, good faith and respect for fundamental rights. By relying on these principles, judges and lawyers can navigate the potential 'mess' of positive rules to find legal solutions that are not only legally valid, but also ethically and morally justified. In addition, general principles of law help to fill gaps where specific laws are silent or ambiguous. In such situations, general principles provide a basis on which judicial decisions can be made, ensuring that these decisions are consistent with the fundamental values of the legal system. General principles of law are essential to maintaining the integrity, coherence and justice of the legal system. They ensure that the law remains rooted in fundamental values and is able to adapt and respond to the complex and constantly changing situations facing modern society.

These principles embody fundamental philosophical and ethical values that form the basis of these legal systems. They act as a guide to the interpretation of the law and play a crucial role in filling legislative gaps. The general principles of law, such as justice, equity, good faith and respect for human rights, serve to interpret and give meaning to written laws, ensuring that their application is consistent with the fundamental values of the legal system. They also help judges and lawyers to make informed decisions in cases where the written law is vague, incomplete or non-existent. However, these principles, in themselves, do not constitute direct forms of binding law, except in cases where they are explicitly enshrined in formal legal documents such as the Constitution. When they are enshrined in the Constitution, these principles acquire a legal force and authority that place them at the top of the hierarchy of legal norms. In such cases, they not only serve as a guide for the interpretation of laws, but also become sources of legally binding rights and obligations. General principles of law are essential elements that contribute to the justice, coherence and fairness of Western legal systems. Although they are not always directly binding, their influence on the interpretation and development of the law is profound and essential to ensure that legislation and legal practice remain rooted in universal fundamental values.

International law is based on fundamental principles that define relations between states and provide a framework for peaceful and orderly coexistence. Among these principles, equality between states, the independence of states and the principle of non-intervention are particularly crucial. The principle of equality between states is a key concept in international law. It states that all states, regardless of their size or power, have equal rights in international relations. This means that every state has the same right to participate in international negotiations and international organisations, as well as in the formation of international law. At UN assemblies, for example, every member country, large or small, has an equal vote in the deliberations. The independence of states, another pillar of international law, emphasises that each state has complete sovereignty over its territory. This means that a state has complete control over its internal and external affairs, unless it has agreed to specific restrictions through treaties or agreements. A concrete example of this voluntarily limited independence can be seen in cross-border cooperation agreements, such as the one between France and Switzerland, which allows police collaboration in specific border areas. The principle of non-intervention stems from the principles of equality and independence. It prohibits states from intervening in the internal affairs of other states, including political, economic or military interference. This principle is essential for preserving the national sovereignty and territorial integrity of States. For example, UN resolutions condemning intervention in the internal affairs of a state are based on this principle. These principles play a vital role in maintaining order and stability in international relations. They facilitate peaceful coexistence between states, enable the non-violent resolution of conflicts and support international cooperation, thus forming the bedrock of the contemporary international legal system.

Nation-states generally have well-structured legal and political systems with a clear separation of powers between the executive, the legislature and the judiciary. These systems enable the effective application and enforcement of the law within the state, as well as the resolution of disputes by established judicial institutions. In a nation-state context, if a dispute arises over the interpretation or application of a law, it is the judiciary that is responsible for adjudicating. National courts have the authority to interpret laws, resolve disputes and ensure that justice is applied fairly. In addition, the existence of an executive force enables judicial decisions and laws to be enforced effectively, thereby strengthening public security and peace. The international legal order, on the other hand, operates differently. The organisation of the international order often lacks the hierarchical structure and centralised enforcement mechanisms that characterise nation states. Although international institutions, such as the International Court of Justice, exist to resolve disputes between states, their ability to enforce their decisions is limited. In the absence of a global executive, the enforcement of international decisions depends largely on the will and cooperation of individual states. This structural difference poses unique challenges for the application and enforcement of international law. States are largely responsible for implementing international law at the national level, and the effectiveness of this system relies on their commitment to respect and implement international obligations. This contrasts with the more direct and coercive system available within nation states to enforce their domestic law.

Annexes[modifier | modifier le wikicode]

References[modifier | modifier le wikicode]