SOURCES OF LAW Legal Language. The concept of source of law SOURCES OF LAW Fontes iuris oriundi Fontes iuris cognoscendi materialformalofficialunofficial.

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Presentation transcript:

SOURCES OF LAW Legal Language

The concept of source of law SOURCES OF LAW Fontes iuris oriundi Fontes iuris cognoscendi materialformalofficialunofficial

Basic forms of law creating 1. Law-making governing, formalised, conventional act of public authorities Unilateral (legislation) Multilateral (agreement, treaty) 2. Practice Customary law Case law

Poland: sources of universally binding law Constitution Laws (statutes) Ratified international treaties Executive orders (regulations, ordinals) Local laws (in the territory of the organ issuing such enactments) The principle of the closed system of sources of law

Poland: Internal law 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.

Law-creating practice Customary law Perpetuated and steady practice General conviction on a binding character (opinio iuris) Authentication by state authorities Public international law, commercial law, IT law Case law Precedent de iure (binding) or de facto (persuasive) 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 of Lisbon 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) How about the hierarchy? German Constitutional Court: Solange I (1974) and Solange II (1986). Polish Constitutional Tribunal and European Arrest Warrant

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

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

Searching for a precedent How to decide whether a case may be applied as a precedent? Is a dead snail similar to ice cream? Ratio decidendi and distinguishing precedent

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