Sources of law are all those from which the law and the rules that apply to individuals originate . The term uses the metaphorical meaning of the word “source”, which indicates the place where the water is born, that is, it evokes its origin.
All those acts and events of the past that have served to order and regulate people’s actions and behaviors are considered sources of law. An example of this is custom and religion, which established codes of conduct to strengthen good habits and avoid vices.
Currently, the sources of law arise in public bodies and in certain procedures. For this, past experiences are taken into account to create and implement a system of law according to the legal needs of the present.
The sources of the law are defined according to their antecedents; They can come from:
- The natural law, which holds that morality and justice are inalienable to human beings,
- The written right, consisting of the documents that establish a mandatory rule of conduct, and
- The common lawor common law , based on case law.
From its antecedents, we can classify the sources of law as formal, material, or real and historical.
Classification of the sources of law
Traditionally, three sources of law are distinguished that are directly related to the legal system of a State, its cultural conditions and history.
Formal sources of law are the texts and documents that compile the laws or concepts related to them, such as, for example, legislation and doctrine.
So are customs and jurisprudence, which consist of the processes of creating laws, their modes of employment, scope and functions.
The formal sources of law are:
- Legislation:through the organs of the State or the public powers, a set of applicable legal regulations are created and promulgated in a hierarchical manner. They are laws that are written in legislative texts such as, for example, a country’s Constitution, regulations or ordinances. This type of source is also known as a direct source or source-act, since it refers to the legal norms that contain the law itself and that are primary in nature.
- Customs:this is the oldest formal source, it is cultural in nature and leads to a series of behaviors that are legally binding and that are widely applied in a community. For example, do not put at risk or attempt against the life of other people. It is also known as source-fact, since it establishes when a rule or regulation is considered social custom.
- Jurisprudence:is the interpretation of the laws made by the judge in cases where the primary laws do not clearly resolve the issues discussed and present difficulties in integrating and interpreting them. It is established by the Supreme Court. It is also known as an indirect source that by itself does not create the Law but helps to interpret and explain a law.
- Doctrine: theyare the interpretations or opinions that the jurists make on the laws to clarify, theoretically, the interpretations of certain norms and their applications. It is also considered an indirect source.
Material sources or actual sources
Material sources or real sources take into account the social reality of a country or community to determine the content of a law of a legal nature.
These laws or regulations can be created through the authorities or bodies authorized to do so, such as, for example, the parliament or assembly of the country in question.
In this sense, the laws are formulated considering the economic, political, social, cultural, historical, religious reality, natural wealth and geography of a country.
It refers to all documents, literary works, scientific treatises or testimonies, of a legal nature or not, that demonstrate how peoples or communities were organized and established norms. These standards are the ones that now serve as an example for the creation of new laws.
Two examples of this are the Hammurabi Code of ancient Mesopotamia or the first Declaration of the Rights of Man and of the Citizen (1789).
Sources of law according to their hierarchy
To better understand the sources of law, it is also important to understand how they interact with each other within a specific legal framework based on their importance and rank.
The importance and rank of each one will be fundamental to apply or create laws and regulations, or to establish sentences, hence there are laws that can generate the precedence of others.
- The Constitution:in most countries the Constitution is the most relevant and important legal text, since it contains a set of fundamental laws that are applied in a country and from which others of lesser rank or scope may derive .
- International treaties: theymake up international law, and are in charge of regulating political, economic, social, and cultural relations between States in order to maintain cooperation, negotiations, and other international relations.
- Formal laws:are those that authorize or prohibit certain behaviors or actions, for example, legislative or ministerial decrees.
- Jurisprudence: refers to the interpretation of laws and regulations that are confusing or ambiguous, for which reason they are discussed in the Supreme Court or Supreme Court of Justice.
- Custom:with the least degree of hierarchy of sources are customs, understood as those behaviors that become social habits or behavior models. These are norms created and imposed by society, for which the analysis of their criteria is carried out based on jurisprudence and doctrine.
The hierarchies of the sources of the law vary from one legislation to another as stipulated in each country. For example, the hierarchy presented generally exposes the Spanish legal system.
Sources of international law
International law also derives from material, formal, and historical sources. It is characterized by the cooperation that exists between nations in order to generate bilateral or multilateral agreements, of reciprocal obligation between the states. Such agreements are based on international customs and principles, stipulated in the norms of the international community itself.
As an example we can mention international treaties, international jurisprudence, the creation of international organizations, the International Court of Justice, among others.
Importance of sources of law
Through the sources of law we can understand the origin of the laws and their evolution, as well as the factors to take into account for their preparation and subsequent application. In addition, it allows us to have a perspective of the effects of its application in society.
Also, it refers us to the history of humanity and to the creation of the first norms based on religion and customs. These were the norms that served to establish the first political, social, and economic systems.