Sources of law

Sources of law:
• Sources on the production of law: enable sources of production of law to be identified.

• Sources of production of law: are the rules that regulate the legal relationship among the
subjects of the law.

• Sources of cognizance: are the sources that give legal notice about the sources of production of
law.

Sources on the production of law:

• Indicate the nomen iuris.

• Provide instruments for interpreting a law.

Nomen iuris:

-> the competent authorities to deliberate the law.

-> the procedure to follow for the approval of the law.

-> the criteria for the enforcement of the law.

Sources of production of law:

They can be divided into 2 macro-categories: acts and facts.

Acts: they are voluntarily adopted laws. They produce a juridical effect because they satisfy three
conditions: existence, validity and efficacy.

An act becomes a law:

• If it is adopted during the exercise of power conferred to a competent body of law.

• If it is recognizable as a law of the type it claims to be.

• If the body that issued is and the nomen iuris identify the law and lead back to its source.

An act is valid if the body competent to adopt it followed the rules established by law.

An act is effective if it is has the requisites to produce its own effects.

Facts: they are not produced by the will of a specific body or subject, but they produce legal
effects because the law recognizes their ability. They combine two elements:

• Objective element: diuturnitas = results from a behavior that has remained unchanged over the
time.

• Subjective element: opinio iuris ac necessitatis = derives from the perception that certain social
behaviors are compulsory, legally binding and if not respected, enforceable by law.

Sources of cognizance:
Sources that give legal notice on sources of production. Laws approved by the State must be
published on sources of cognizance (such as: Official Gazette, Official Journal of European union)
in order to be enforceable.

Interpretation:

Enables the meaning of the law to be distinguished from the expression of the law, so that the law
can be applied.

Interpreting laws’ different Constitutional elements that place them in a specific category leads to
the concrete case.

The interpretation depends on context, temporal references and law governing the policy area.

As a rule, judges and administrators have the right to interpret the law and to reconstruct the
voluntas of the legislative branch.

Interpretation is influenced by the interpreter approach, but it must respect specific criteria.

Criteria of hierarchy, chronology, competence and specialization have been devised to resolve
contrasts between laws that cannot be resolved simply through an interpretation. They are
needed to find which law to apply. The interpreter needs to apply law to any specific case, giving
the correct meaning to the written test (law, regulation, contract).

• Chronology: laws belonging to the same category, but approved at different times, can contrast
one another.

Lex posterior derogat priori: and "old" law in effect that contrasts a “new” one approved at a
 later date is repealed by the “new” law and ceases to have effect.

Principle of non retroactivity: laws only have future validity. Their repeal is effective ex nunc.

The repeal may be:

- Express: the “new” law specifies that the “old” must be repealed.

- Tacit: the “new” law is incompatible with the “old” one.

- Implicit: the “new” law substitutes the “old” one even if they are not incompatible.

• Hierarchy: laws on a different category may be contradictory when one law occupies a higher
level in the hierarchy of legal sources.

Lex superior derogat legi inferiori: the situation is resolved when the law on a lower level yields
its place to a law on a higher level, but does not change with repeal. It is declared illegitimate
and then annulled, so it loses validity ex tunc.

• Competence: contrasts between laws on the same level cannot always be resolved by applying
the criterion of chronology. 

A contrast between sources on the same level is resolved in terms of competence. The
prevailing law source is the one the Constitution considers competent in that area. 

A law that invades the competence of another can be declared illegitimate.

Only the Constitutional court can declare primary sources Constitutionally illegitimate.

Ordinary and administrative judges can declare secondary sources illegitimate.

• Specialization: a law of a general nature and one of a specific nature may contrast each other.

Lex specials derogate lex generali: a specific law takes precedence over a general one.

The general law is not applied but remains valid and effective. The effect is ex nunc.

Constitutional statutory limits:


Many constitutional provisions reserve specific subject matters to ordinary state laws and acts
having the force of law to restrict the executive branch’s regulatory power and to restrain the
legislative branch. Only law and not regulations can rule on these specific subject matters.

There are four types of statutory limits:

• Absolute: only law can regulate a particular policy area (e.g. criminal law), and primary sources
regulate its subject matters.

• Relative: law establishes the principles and secondary sources establish the rest.

• Simple: the constitution requires law to regulate a certain subject matter, but it doesn’t place
any restriction on its contest.

• Reinforced: the constitution provides for the law and its provisions, it establishes limits on the
content as well.

Atypical laws: are characterized by particular passive or active limits.