In juridical science, a distinction has been made between material sources, or sources in a material sense, and formal sources, or sources of law in a formal sense. A source in a formal sense represents the form of adoption or sanction of the juridical norms, and the specialized literature, including the Western one, distinguishes between formal source, in the sense of form of expression of the norms and the fundament of law, on the one hand, and material source, seen as configuring factors that determine the juridical phenomenon[1].
Keywords: law, sources of law, formal sources, juridical norms, national law, international law
In juridical sciences, the term source of law refers to the sources, origin and factors determining and creating the law.
In general, the word source of law is used in the theory of law, but, at the same time, in juridical sciences, as well, in a strictly juridical sense, with reference to the forms of expression of the juridical norms: juridical principles and customs, normative acts, juridical practice, specialists' opinions etc.[2].
Law is founded both on material and formal sources.
Material sources, sometimes called as well real or social sources, constitute the result of customs and other non-juridical norms of a certain society, of the non-written behavior norms, of a community's mentalities and states of mind.
These sources take on, in the course of time, the apparel of written norms and gradually become formal sources that include the law and the doctrine[3].
While among the classical norms we find the custom, the modern sources are made up almost exclusively of formal sources.
At the same time, other distinctions in matters of law source make a distinction between direct and mediated source. A direct source generally refers to the juridical act in which the juridical norm envisioned appears. A mediated source is a custom or principle referred to by a juridical normative act sanctioning a custom or an economic, political or another kind of principle[4]. At present, it is considered correct to affirm that there are direct sources - law and custom - and indirect or mediated sources: juridical practice and doctrine.
We can conclude that, by the law sources, in a juridical sense, juridical science refers, in a very broad sense, to the juridical norms' forms of expression in a law system in different epochs and countries[5].
An important aspect regarding the concept of sources is that usually the authors tend to connect the sources of law to the activity of creation or elaboration of law. In general, what is highlighted is the determining moment when a juridical, obligatory character is given to the rule of conduct. This moment corresponds to the recognition by the State of a juridical value for rules formulated in other ways (customs, juridical precedents, acts of non-State organisms etc.). A direct, immediate norm formulation is also possible in different normative acts (laws, decrees, decisions etc.).
Hence, a differentiation of the law sources into direct and indirect (complex or mediated) sources results. Thus, a custom acquires juridical value indirectly, by means of an act sanctioning it and for this reason it is considered an indirect source, while normative acts, being elaborated with no mediation by the State organs, are considered direct sources[6]. Among the multiple senses of the notion of sources, one must make certain distinctions: the positive law source is actually something else than the forms it consecrates and these forms are in their turn something else than the norms they express. Sources appear as social acts, sometimes as acts of certain State organs (legislative acts, judicial decisions), and at other times as
- 310/311 -
collective acts (formation of customs, of traditions, and even of doctrine)[7].
Mircea Djuvara affirms that "social acts acknowledged as legitimate, which under these conditions consecrate juridical norms, are law sources: it is with them and only by them that those norms begin indeed to exist as positive law realities"[8].
The term source, according to the analysis of M. Djuvara, can be understood both in a broad sense and in a narrow sense. In a broad sense, it includes factors of determination (namely the material sources of the juridical norms) and creative factors (exterior forms by which the ideas, consecrated in juridical norms, are realized, and which constitute formal sources).
The diversity of the formal sources is explained by the dynamic multitude of the social relations calling for juridical regulation. The evolution of the society highlights the existence of a plurality of sources for all the law systems, their weight varying from one historical moment to the next, starting from the juridical custom and going up to the Constitution and the international conventions[9].
Material sources (social, economic, cultural, ideological etc.) have an undeniable role in the study of law, both on the level of the theoretical investigation and in the practical activity of law creation. Material sources are substantiated in social commandments by a legislator's intervention. For this reason, it is very important to know these factors, their way of action, the correlation between them and the relation between incipient (material) sources and actual (formal) sources.
The formal source of law includes a series of aspects, of modalities, by which the content of the legal norm becomes rule of conduct, model to follow in inter-human relations. This variety of forms of the juridical norms determines some authors to invoke the heterogeneous character of the formal law sources[10].
Stricto sensu, the law source has in view the formal law sources.
To take into account the differences between the two categories (material sources versus formal sources), different authors also propose a classification of the law sources into two categories: potential sources and actual sources. The potential ones are possibilities substantiated by means of the State, whereas the actual sources are efficient and determined law sources acting on the concrete social relations and consisting in the set of normative acts in force.
However, the authors supporting this perspective only include in such a classification the normative acts, without taking into account the existence of the other sources in the sphere of the formal law sources: custom, jurisprudence etc.
Kelsen considers that, in a material and historical sense, the idea of source of law concerns the simple historical source determining or explaining the existence of a norm (conditions of time and place). In this sense, the source of the contemporary English law is the Roman or canonic law or the moral rules. In a formal sense, the concept of law source must be viewed from a different perspective: from the perspective of the validity criteria. When it is affirmed that a status is a source of law, then the word source refers not to historical determinations, but to one of the criteria related to validity accepted by the law system under discussion[11]. Kelsen introduces, therefore, the distinction of maximal importance between historical causes and reasons of validity and efficiency of the juridical norms. It is precisely this aspect that ought to preoccupy first and foremost the theory of law: the reasons of validity and efficiency of law. Yet, these matters can only be analyzed dogmatically, law being a closed logical system[12].
Certain authors include, among the known sources of law, non-formal sources as well (substratum of things, law principles, individual equity, public policy, moral conviction etc.), preferable for the judge, since they have the potential of guiding him better in giving correct solutions. This opinion has been reproached the introduction of subjective elements in the law application process[13].
The observations made so far are meant to highlight the fact that the study of the law sources and of the forms of expression of law has been and will remain a continual preoccupation for the juridical thinking. The problem is not at all strictly theoretical; it has incontestable practical virtues, in the application and realization of law[14].
- 311/312 -
One can observe that formal sources originate in a multitude of sources (normative acts of State authorities, customs, juridical precedents, doctrine etc.) and take on a plurality of forms, the weight of the sources changing depending on the degree of development of the law system and on the complexity of the social relations they originate in. While in the feudal law the main form of the law sources is custom, after the bourgeois revolutions the normative act tends to replace almost totally the material sources of law.
Structuralism makes certain distinctions regarding the form of law, referring to: interior form (interaction between juridical norms, their arrangement into institutions and branches) and exterior forms (ways of expressing the will of the legislator or of the organs competent to elaborate juridical norms) in the domain of law sources[15].
According to the researcher Sofia Popescu, the formal law sources are ways of formation of the juridical norms (those forms, procedures and solemn acts by which these norms acquire their validity), forming the positive law of a country. The search of the formal sources of law is equivalent to the identification of the authors of the formulation of the juridical norms.
To be able to ask for obedience to the law, it must meet the demands of formal validity, namely:
- emanate from the organs empowered to emit it;
- be adopted according to a certain procedure;
- be made known to its addressees in ways foreseen by the legal dispositions[16].
To acknowledge the formal law sources and the general obligatory character of the norms entailed by them, what is needed is a rule of law where the authorities must respect these sources, in good faith, excluding the arbitrary, so that human behavior may be really subordinated to the governance of law.
Formal sources can be analyzed both as internal aspect (articles situated in paragraphs or lines, grouped into parts, titles, sections with explanatory annexes etc.), and as external aspect (laws, decrees, decisions, orders etc.). One can highlight the creative authority and the acts by which the respective norms were issued and sometimes it can be important to research extremely variable and frail material sources that led to the particularities of the different norms. Formal sources, by their power of abstractization, delineate law branches and allow for an overall image as far as they are concerned. In correlation with the different law branches are the juridical institutions assuring the application of the juridical norms[17].
Among the formal sources one can find documentary sources, namely those publications containing the authentic text of the normative acts, being acknowledged as official law sources such as: "Monitor", "Jurnal Oficial" or "Monitor Oficial" (i.e. Official Journal)[18].
Traditionally, there are four formal sources of internal law: 1) law; 2) custom; 3) jurisprudence and 4) doctrine. Yet, when the formal sources of internal law are analyzed, one must also take into account 5) "autonomous law" and "norm acts", and 6) general law principles[19].
Since the Revolution, the French Law makes out of the laws the main source of Law, yet the role of jurisprudence, of the custom, of the general principles or of the doctrine still needs clarifying. This strict delimitation is clearly worth moderating, the different law sources being not at all mutually isolated: if we were to use a metaphor, as in the case of communicating vessels, the increase of the importance of a source decreases the significance of the others, creating a competition among them[20], which is one of the reasons of the crisis affecting the law sources today[21].
The formal sources of international law would be, according to the Status of the International Court of Justice (Art. 38): 1) treaty; 2) international custom; 3) general law principles and 4) international jurisprudence and doctrine (made up of the opinions of the best specialists of different countries).
International law comes only from the States' consent, this consent being explicit, in the case of treaties, and tacit, in the case of custom. We can mention that it is considered international treaty any understanding between two or several international law subjects, meant to produce juridical effects. Once approved
- 312/313 -
as decided by the legislative power and published, the treaty becomes executory, obliging the contracting parties mutually. From that moment on, the signatory States have the duty to assure its application in their internal order.
International law relies on a customary basis, international custom being a formal source distinct from the internal law sources. The law of the international treaties relies on the conduct norms respected traditionally in the inter-State relations. Some international customary norms can be applied by the national jurisdictions. Such examples of customary norms can refer to war and military occupation, and at the same time diplomatic immunities[22].
Each juridical system develops a theory of the law sources that is specific to it. Such a theory is first of all the fruit of history. Thus, the Romance-Germanic countries consider the laws as the main source of Law[23]. On the contrary, the Law of Common Law countries is especially jurisprudential[24]. The law sources theory also depends on the development stage of the juridical system: it seems that as the system is being improved, the role of the custom decreases compared to that of the law. Thus, the theory of the law sources is especially the fruit of ideologies[25].
If we admit that law is but the expression of the collective will of a society, this will, regardless of its ways of expression, is the only veritable law source[26]. In this sociological conception, the origin of the rules of law and their ways of manifestation are but technical procedures of law production[27].
Therefore, as it has been said before, the jurist must be at the same time keen on choosing the sources and on knowing the law[28]. ■
NOTES
[1] S. Popescu, M.-L. Hrestic, A. Serban, R. Stancu, M. Viziteu, Teoria generala a dreptului, Curs universitar (General Theory of Law, University course), Ed. Pro Universitaria, Bucuresti, 2016, p. 139.
[2] I. Ceterchi, I. Craiovan, Introducere în teoria generala a dreptului (Introduction to the General Theory of Law), Ed. All, Bucuresti, 1998, p. 69.
[3] H. Oprean, Introducere în studiul dreptului (Introduction to the Study of Law), Ed. Servo-Sat, Arad, 1996, p. 23.
[4] G. Vrabie, Drept. Elemente de teoria statului si dreptului (Law. Elements of State and Law Theory), Universitatea Alexandru Ioan Cuza, Iasi, 1978, pp. 96-98.
[5] I. Ceterchi, I. Craiovan, op. cit. , p. 70 et seq.
[6] J.-L. Bergel, Théorie générale du droit, Dalloz, Paris, 1986, pp. 52-54.
[7] M. Djuvara, Teoria generala a dreptului. Drept rational, izvoare si drept pozitiv (The General Theory of Law. Rational Law, Sources and Positive Law), Ed. All, Bucuresti, 1995, pp. 453-454.
[8] Idem, p. 490.
[9] Gh. C. Mihai, R. I. Motica, Fundamentele dreptului. Teoria si filosofia dreptului (Fundaments of Law. Theory and Philosophy of Law), Ed. All, Bucuresti, 1997, pp. 93-94.
[10] I. Rossetti-Balanescu, O. Sachelarie, N. Nedelcu, Principiile dreptului civil román (Principles of the Romanian Civil Law), Bucuresti, 1947, p. 10.
[11] H. Kelsen, General Theory of Law and State, 1945, pp. 131132.
[12] N. Popa, Teoria generala a dreptului (General Theory of Law), Ed. Actami, Bucuresti, 1996, pp. 193-195
[13] E. Bodenheimer, Jurisprudence. The Philosophy and Method of the Law, Haward University Press, 1974, p. 49, cited by S. Popescu, Introducere în studiul dreptului (Introduction to the Study of Law), Universitatea Romana de Stiinte si Arte "Gheorghe Cristea", Bucuresti, 1991, p. 7.
[14] N. Popa, op. cit., p. 196.
[15] M. V. Dvoracek, Gh. Lupu, Teoria generala a dreptului (General Theory of Law), Editura Fundatiei Chemarea, Iasi, 1996, p. 133.
[16] S. Popescu, Introducere în studiul dreptului (Introduction to the Study of Law), Bucuresti, 1994, p. 119.
[17] M. V. Dvoracek, Gh. Lupu, op. cit., pp. 175-176.
[18] S. Popescu, Teoria generala a dreptului (General Law Theory), Ed. Lumina Lex, Bucuresti, 2000, p. 147. Apud S. Popescu, M.-L. Hrestic, A. Serban, R. Stancu, M. Viziteu, op. cit. , pp. 139-143.
[19] S. Popescu, op. cit., p. 147.
[20] According to P. Malaurie, «Réactions de la doctrine à la création du droit par les juges», Defrénois 1980. 32344; «La jurisprudence combattue par la loi», in Mélanges R. Savatier, Dalloz, 1965, p. 603. By comparison, see G. Canivet, «La Cour de cassation et la doctrine, effets d'optique», in Mélanges J.-L. Aubert, Dalloz, 2005, p. 373.
[21] For example, see R. Cabrillac, Introduction générale au droit (General introduction in law), edition 10, Dalloz, Paris, 2013, p. 94. Apud S. Popescu, M.-L. Hrestic, A. Serban, R. Stancu, M. Viziteu, op. cit. , p. 143.
[22] S. Popescu, op. cit., p. 170. Apud S. Popescu, M.-L. Hrestic, A. Serban, R. Stancu, M. Viziteu, op. cit. , p. 164.
[23] See F. Zénati, «L'évolution des sources du droit dans les pays de droit civil», D. 2002. 15.
[24] For details, see: R. David, C. Jauffret-Spinosi, Les grands systèmes de droit contemporains, Dalloz, edition 11, 2002, no. 324 et seq. for Great Britain, no. 388 et seq. for the United States of America.
[25] See R. Cabrillac, op. cit., p. 94. Apud S. Popescu, M.-L. Hrestic, A. Serban, R. Stancu, M. Viziteu, op. cit., p. 143.
[26] As an example, see H. Lévy-Bruhl, Aspects sociologiques du droit, Éd. Marcel Rivière, 1955, p. 47 et seq.
[27] For example, see J.-F. Perrin, Pour une théorie de la connaissance juridique, Droz, 1979, p. 103 et seq.
[28] See J.-L. Bergel, Théorie générale du droit, edition 5, Dalloz, Paris, 2012, pp. 60-61. Apud S. Popescu, M.-L. Hrestic, A. Serban, R. Stancu, M. Viziteu, op. cit. , pp. 126-127.
Lábjegyzetek:
[1] The author is "Valahia" University of Târgoviste, Romania.
Visszaugrás
