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. Formal sources are connected with what creates the law: statutes, case law, contracts, and so on. 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. 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. 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 originate and maintain authority. The perceived authenticity of a source of law may rely on a choice of jurisprudence analysis. Tyrants such as Kim Jong-un may wield de facto power, but critics would say he does not exercise power from a de jure (or legitimate) source. After WWII it was not a valid defence at Nuremberg to say 'I was only obeying orders', and the victors hanged Nazis for breaching 'universal and eternal standards of right and wrong'. Over decades and centuries, principles of law have been derived from customs. The divine right of kings, natural and legal rights, human rights, civil rights, and common law are early unwritten sources of law. Historical or judicial precedent and case law can modify or even create a source of law. Legislation, rules, and regulations form the tangible source of laws which are codified and enforceable. In civil law systems, the sources of law include legal codes and custom; in common law systems there are several sources that combine to form 'the law'. Civil law systems often absorb ideas from the common law and vice-versa. A state may comply with international law, have a written or federal constitution, or have regional legislature, but normally it is the central national legislature that is the ultimate source of law.

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.
• Legal theory usually classifies sources into formal and material sources, though this classification is not always used consistently.
• 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, parliamentary conventions, general customs, books of authority, and canon law.