Sources of Law (2) 2023 PDF

 CIVIL LAW  In the civil law system, there are four principal sources of law: 1. Legislation (Codes and Statutes) 2. Custom 3. Rules of Equity 4. Jurisprudence  LEGISLATION  Legislation is a primary source of Law. It means the formation of legal rules by the...

 CIVIL LAW  In the civil law system, there are four principal sources of law: 1. Legislation (Codes and Statutes) 2. Custom 3. Rules of Equity 4. Jurisprudence  LEGISLATION  Legislation is a primary source of Law. It means the formation of legal rules by the competent authority (the Government) then such rules must be embodied in Statutes or Codes.  LEGISLATION  Legislation becomes executable and applicable to individuals if and only if it has been published and the individuals are informed of its existence. This represents a main principle of the administration of justice which is transparency. Since it is impractical to inform each citizen of new laws, the state assumes that every subject on its territory, whether citizens, residents or foreigners are informed of its laws upon their publication in the “Official Gazette”.  **Hierarchy in types of legislation?  CUSTOM  In underdeveloped societies and before the emergence of the state in its modern shape, individuals were not represented in order to express their interests in the form of laws, instead the chiefs of tribunals were acting in a manner which conforms to the rules imposed by customs in that particular society. There are general customs which are the ones that prevail all over the country, and there are local customs which prevails in certain areas.  CUSTOM  Custom can be defined as the adoption of certain practices and habits by certain people for a long time and without substantive changes which results in making such practices and habits compulsory. Key element: repetition; regular observance  Distinction must be made between customs and usage. Customs consist of a material element which is following a certain practice by certain individuals, and psychological element which is the individuals’ conviction that such practices are binding. However, usage consists of a material element only. Having said that, it must be noted that usages can become binding once they are incorporated, either explicitly or impliedly, into parties’ agreement. This is a main aspect of the idea of freedom of contracting.  TRADE USAGE  EQUITY  Equity is a generic term that encompasses fairness, reasonableness, morality and justice. Its roots can be traced back to natural justice. As a result, in many cases, the determination of equity as a source of law is challenging. Besides, principles of equity should be consistent with the provisions of law. Accordingly, it has been considered as a supplementary source of law.  EQUITY  However, rules of equity can be utilized to encounter any deficiency or injustice in the provisions of law. Moreover, equity can be utilized to deal with entirely new rights and remedies totally unknown to the provisions of law. Furthermore, equity implies certain remedies as a relief that can be offered in particular circumstances that are beyond the reach of law.  SCHOLARLY WRITINGS  It studies the nature, sources, efficiency, form and substance of law and legal institutions. In France, it has been said that French law has been influenced to a large extent by Jurists’ comments and proposals. In UAE Jurists’ opinions are supplementary source of law and Judges refer to such opinions for guidance only. SOURCES OF LAW IN THE ENGLISH LEGAL SYSTEM England has a common law system. The sources of English law can be classified as follows: 1. Legislative sources: A. Primary legislation (Acts of Parliament) B. Secondary legislation (statutory instruments) C. [Pre-Brexit] European legislation (Regulations and Directives)  SOURCES OF ENGLISH LAW 2. Case Law 3. Equity 4. Other sources: Customs/ Trade Usage and Scholarly Writings  JUDICIAL PRECEDENTS  This source of law consists of the decisions of courts which have been made in the course of litigation. The decisions of courts are more than just authoritative statements of the law since they can be binding in subsequent cases where the material facts are the same, notwithstanding whether or not the other courts believe that such decisions are appropriate.  JUDICIAL PRECEDENTS  Rule of Precedent [‫]السوابق القضائية‬: like cases (material facts) should be treated alike and that dissimilar cases should be treated differently.  Stare decisis: lower courts are bound to follow the judgment of higher courts.  Rule of precedent is associated with court hierarchy. Components of a Precedent:  Ratio decidendi or Holding [‫]أسباب الحكم‬: that part which directly refers to the facts presented in the case and includes the legal reasoning upon which that courts has based its decision. The holding is the binding precedent.  Obiter dictum [‫]مالحظات‬: judges’ observations and commentaries not directed to the facts of the case at hand. Such opinions carry persuasive value.  JUDICIAL PRECEDENTS  Advantages: assist in proper and consistent application of legal rules; provides predictability and certainty (able to advise client, encourage amicable settlement); provide answers to more cases and circumstances.  Disadvantages: introduce complexities given the volume of case law; rigidity; improper application of precedent.  What happens if a judge faces an unfavorable precedent? BONUS: TYPES OF EUROPEAN UNION LEGAL ACTS  EU Treaties: treaties lay down the objectives of the European Union, the rules for EU institutions, how decisions are made and the relationship between the EU and its member countries. The EU treaties have from time to time been amended to reform the EU institutions and to give it new areas of responsibility. They have also been amended to allow new EU countries to join the EU.  The treaties are negotiated and agreed by all the EU countries and then ratified by their parliaments, sometimes following a referendum [‫]استفتاء الشعب‬. TYPES OF EU LEGAL ACTS 1. Regulations: are legal acts that apply automatically and uniformly to all EU countries as soon as they enter into force, without needing to be transposed into national law. They are binding in their entirety on all EU countries. 2. Directives: require EU countries to achieve a certain result, but leave them free to choose how to do so. EU countries must adopt measures to incorporate them into national law (transpose) in order to achieve the objectives set by the directive. National authorities must communicate these measures to the European  TYPES OF EU LEGAL ACTS 3. Decisions: A decision shall be binding in its entirety. A decision that specifies those to whom it is addressed shall be binding only on them (eg, EU country or company). 4. Recommendations: allow the EU institutions to make their views known and to suggest a line of action without imposing any legal obligation on those to whom it is addressed. They have no binding force.  VOCABULARY CHECK  Binding  Holding  Codes  Judicial precedent  Custom  Jurisprudence  Equitable principles  Obiter dictum  Equity  Precedent  EU Decisions  Ratio decidendi  EU Recommendation  Stare decisis  EU Regulations  Statutes  EU Treaties Legislation  Trade Usage