Sources of Law Law Creating Fundamentals of Law

Sources of Law & Law Creating Fundamentals of Law & Government Maciej Pichlak Ph. D Department of Legal Theory and Philosophy of Law University of Wroclaw Maciej. Pichlak@uwr. edu. pl

The concept of a source of law SOURCES OF LAW Fontes iuris oriundi material formal Fontes iuris cognoscendi official unofficial

Basic forms of law creating 1. Law-making (Enacting) - Unilateral (legislation, regulation) - Multilateral (agreement, convention, treaty) 2. Practice - Customary law - Case law (precedents)

Forms of law-making • Universally binding laws - binding all categories of addressees (private individuals) - published in official journals (promulgation) - closed system (limited number of forms and subjects) • Internal laws - binding only subordinated subjects - less formalized, open system

Universally binding laws Constitution Parliamentary acts (statutes) Executive orders (regulations, ordinals) Ratified international treaties Local laws

Internal laws: Poland Resolutions and orders Article 93 of Polish constitution: • Shall bind only those units organizationally subordinate to the organ which issues such act; • shall not serve as the ground for decisions taken in respect of citizens, legal persons and other subjects; • shall be subject to scrutiny regarding their compliance with universally binding law.

Customary law • • • Perpetuated and steady practice General conviction on a binding character (opinio iuris) Authentication by state authorities Where is it used? • Public international law; • laws of indigenous people (Africa, South and North America, Australia); • commercial law; • common law.

Precedent as a source of law Precedent in common law and statutory law system: Precedent de iure (binding) or de facto (persuasive) Binding precedent: - Binding for future cases (stare decisis principle) - Independent and sufficient ground for decision

Public international law • Treaties • Customary law • Ius cogens • Law created by international organization

European Union law 1. Primary law Treaties: Treaty on the Functioning of the European Union (Lisbon Treaty, 2007) 2. Secondary law • • • Regulations Directives Decisions, opinions and recommendations 3. Supplementary law • • Case law of CJEU General principles An autonomous system, at the same time forming a part of the state law of the member states.

European Union law Its position in the state law of the member states Direct effect (van Gend en Loos 1963) Supremacy/ Priority (Costa v. ENEL 1964) What about the hierarchy? • German Constitutional Court: Solange I (1974) and Solange II (1986).

Branches of EU Law • Constitutional law • Competition law • Law of internal market

Further reading BASIC: ITL, Chapter 10 BLB, Chapter 5 ADDITIONAL: Sources and Scope of European Union Law http: //www. europarl. europa. eu/atyourservice/en/display. Ftu. ht ml? ftu. Id=FTU_1. 2. 1. html