Sources of Law - Week 3

• Assist. Prof. Mouhamed Bachir DIOP is the instructor.
• The lesson is from week 3.

Definition of Sources of Law

• Sources of law refer to the origin where rules of human conduct are created, holding legal force and binding characteristics.

Significance of Understanding Sources of Law

• Understanding the sources of law is important for both individuals and lawmakers.
• Legislators create laws for application in society, aiming for obedience in the interest of society.
• Knowing the source of law provides respect for the state and minimizes the fear of consequences.
• Legal rules may conflict, so an understanding of their origin informs which is applicable.

Types of Law Sources

• Law sources are divided into formal and informal categories.
• Formal sources: Written and unwritten sources.
• Written sources: constitution, legislation, decree, international treaty, statute, and regulation.
• Unwritten sources: custom.
• Informal sources: case-law and legal scientific opinions.

Formal Sources of Law

• Legal rules that judicial bodies consider in decision-making.
• These rules are binding, deriving legitimacy from their source.
• Violation of such rules is not tolerated on grounds of illegality.
• Formal sources are further divided into written and unwritten.

Written Sources of Law

• They comprise all legal rules established by competent state organs.
• These rules must be published in the Official Journal of the state.
• These sources include constitution, legislation, decree, international treaty, statute, and regulation.

The Constitution

• The Constitution sits at the top of law sources.
• It is the foundation document defining the organizational and functional framework of the State.
• It dictates the state's form (constitutional or monarchy)
• This includes the form of the political regime (parliamentary or presidential).
• It determines the relationship between state institutions.
• It determines the relationships and the fundamental rights of citizens.

Main aspects of the Constitution

• Regulates specific matters in any country.
• Deals with the state's form, either constitutional or monarchy.
• Deals with the nature of the political regime (parliamentary or presidential).
• Defines the relationships between state institutions.
• Outlines the fundamental rights of citizens.

Legislation

• Legal texts from the legislature
• It ranks above regulations but below the constitution
• They contain general, abstract rules.
• Legislation types include laws modifying the constitution, organic laws specifying and applying constitutional articles, and ordinary laws from parliamentary processes.

Key Properties of Legislation

• It is legally written.
• State legislations are written and considered positive or legislative law.
• It is generally applicable.
• It aims to regulate matters for everyone in similar situations.
• It is continuous in application.
• It is designed for ongoing rather than single use.

Decree

• An order from the head of state, such as a president or monarch.
• Such procedure is outlined by the constitution.

Decree - Main Aspects

• It possesses the force of law.
• The executive branch is accountable for its drafting and enactment.
• Frequently used to implement existing laws.
• Publication in the state's official journal is mandatory.

International Treaties

• Written agreements between international law subjects
• Its purpose is creating legal effects and adherence to international laws.

International Treaties - Major Elements

• Agreements exclusively between states or involving international bodies.
• Focus on regulating international matters related to state relationships.
• They have a binding power stronger than domestic law, constitution if ratified by Parliament or Referendum.

Statutes and Regulations

• Statutes: Legal regulations defining objective rules for given situations.
• Regulations: Rules governing the specific details and applications of law.

Statutes and Regulations - Key Aspects

• Statutes are regulations by ministers or parliament to show how a law is put into practice.
• They become effective after the President signs them, and are published in the Official Journal.
• The statues must comply with the constitution.

Unwritten Sources of Law

• Primarily based on custom.
• Unlike written rules, customs lack formal documentation in the state's official journal.
• Custom is the only unwritten law source.

Custom

• Definition: Habits and reactions to occurring situations outside formal justice
• They have a broad consensus and endorsement from judicial authorities.

Criteria to Validate Custom as a Legal Rule

• Antiquity: The behavior has been in practice for a long time, material element of customs and traditions.
• Continuity: The action has been constantly repeated since ancient times.
• General Belief: Society generally believes in necessary compliance, it represents the moral element of customs and traditions.
• State Support: Must be recognized and supported by the legal order, it represents the element of legality.

Informal Law Sources

• Assist in determining which legal rules should apply, but are not binding.
• These sources encompass case-law and scientific legal opinions.

Case-Law

• Decisions from judicial bodies (courts) regarding the cases they adjudicate.

Case-Law - Key Features

• Can arise following court examination of certain disputes.
• May function as law interpretation.
• Might be a response in instances with a legal void.

Scientific Legal Opinions

• Also called doctrine
• Legal scientists forward opinions and thoughts on controversial legal issues.

Hierarchy of law sources.

• It signifies the variation in power and authority among law sources.
• Official status differs since it depends on social, economic, political, and historical conditions of each society.

Latin vs Anglo-Saxon Systems

• The Latin system (France, Belgium, Spain, and Turkey), and the Anglo-Saxon system (England and the United States of America).
• Case-law and custom predominate in the Anglo-Saxon system
• Legislation has a primary role in the Latin system.

Law Hierarchy in Turkey

• Turkey employs the Latin system in establishing its legal source hierarchy.
• The legal hierarchy is organized as follows: 1. Constitution (Anayasa), 2. Legislations (Kanunlar), 3. International Treaties (M.arası Andlaşmalar), 4. Decree (Cumhurbaşkanlığı Kararnameleri), 5. Regulations (Yönetmelikler), 6. Statutes (Tüzükler).