Sources of law

Lore & Background

Legal theory usually classifies sources of law into formal and material sources, although this classification is not always used consistently. Normally, formal sources are connected with what creates the law: statutes, case law, contracts, and so on. In contrast, material sources refer to the places where formal law can be found, such as the official bulletin or gazette where the legislator publishes the country's laws, newspapers, and public deeds. Following the Aristotelian notion of the four causes (material, formal, efficient, and final causes), Riofrio also develops additional potential sources of law. For instance, efficient sources of law would include actions of nature or 'of God' that change the law, actions of the intellect that produce legal culture, and actions of the will that approve laws and agreements. On the other hand, several final sources of law exist, such as the purposes of law, the intentions of the parties in a legal transaction, the goals of each policy, and the ends of the constitution.

Reader's Guide

The concept of sources of law is fundamental to understanding how legal systems operate and derive authority. In civil law systems, the sources of law include legal codes and custom; in common law systems, several sources combine to form 'the law'. The perceived authenticity of a source of law may rely on a choice of jurisprudence analysis. Over decades and centuries, principles of law have been derived from customs, with historical or judicial precedent and case law able to modify or even create a source of law. Legislation, rules, and regulations form the tangible source of laws which are codified and enforceable. International treaties and European Union law represent special examples of international sources, with EU member states adopting all EC law to date. The hierarchy of sources varies by jurisdiction, as seen in England where legislation, case law rules, parliamentary conventions, general customs, books of authority, and canon law form a structured order. Understanding sources of law is essential for determining the validity, legitimacy, and application of legal rules across different legal systems.

Did You Know?

• The terminology 'source of law' was already used in Rome by Cicero as a metaphor referring to the 'fountain' ('fons' in Latin) of law.
• Following the Aristotelian notion of the four causes, Riofrio develops additional potential sources of law including efficient and final sources.
• In England, the archetypal common law country, there is a hierarchy of sources including legislation, case law rules, parliamentary conventions, general customs, books of authority, and canon law.
• The European Union is a special example of international law where member states adopt all EC law to date, including treaty provisions, regulations, directives, decisions, and precedents.