LLBJoanna Helios

Wioletta Jedlecka

The concept of the sources of lawSources of law (latin: fontes iuris oriundi) are

facts/acts, which on the basis of shared by the legal doctrine specific „normative conception of sources of law”, are thought to be the basis of validity of binding legal norms in the sepcific legal system.

Basic forms of law-creating

There are two basic forms of law-creating:1)law-making and2)practice.

Law-makingLaw-making is defined as an unilateral,

governing, formalised, conventional act of public authorities that are competent to establish the law. This act results in creating binding legal text, which introduces a new rule of conduct into a particular legal system.

Law-making is a dominant form of law-creating in civil law culture.

Practice Practice can be a form of law-creating. It has to be consolidated/perpetuated and

steady. Such practice establishes a „custom”.Custom is the established pattern of

behaviour that can be objectively verified within a particular social setting.

Customary law exists where a certain legal pracitce is observed and the relevant actors consider it to be law.

Types and hierarchy of law-making instrumentsThe higher the position of an authority in the

hierarchy of public authorities, the greater the legal force of instruments established by this authority.

Law-making instrument with lesser legal force should not be inconsistent with an instrument of greater legal force. The latter derogates an instrument with lesser legal force. The one with greater force determines the shape and scope of norms in the one with lesser legal force.

The categories of sources of the Polish law

The sources of the Polish law are divided into two categories:

- universally binding law and - internal law.

The sources of universally binding Polish lawThe sources of universally binding Polish law are

(according to the latest Constitution of 2 April 1997):

- the Constitution;- the statute;- ratified international agreement and - executive order (ordinance). In addition to these sources it has to be mentioned as

well that the enactments issued in the course of operation of organs of local administration constitute the universally binding law in the territory of territorial organ that issued such enactments (local law).

Constitution The Constitution in Poland is upheld by the

National Assembly i.e. the Sejm and the Senat acting together.

It has the highest rank in the hierarchy of law-making instruments.

It is passed and amended under the special procedure.

It regulates the general issues concerning politicial, social and economic order of a state.

It grants powers to public authorities and formulates the basic priciples of the law.

Special authorities are established to monitor compliance of norm-setting instruments with the constitution (the Constitutional Tribunal in Poland).

StatuteIt is a basic act of the universally binding law in

Poland. The statutes are adopted by the Sejm in

cooperation with the Senat and have to be signed by the President.

The right of legislative initiative belongs to a group of a least 100,000 citizens, Sejm, Senat, the President and to the Council of Ministers.

The subordination of statutes to the Constitution means that the norms of the statute must remain within the limits of the Constitution.

Treaties Ratified international agreements posses the

force of the statute. Once an agreement is published, it becomes a

part of the domestic legal system and may be applied directly. Ratification is within the competence of the President of the Republic of Poland.

Some agreements require prior consent before ratification and expressed in the statute. In case where such an agreement contradicts with the statute, the agreement prevails.

Executive order Are issued only by those organs that are

expressly stated in the Constitution. Moreover, regulations have to be issued on

the basis of specific authorization contained in the statute and in the purpose to implement the statute.

Local lawThe acts of local law are binding within

territory where the issued organ exercises its powers.

These acts may only be issued on the basis provided in the statute and within the limits prescribed in the statute.

Announcing the law The statutes, regulations and enactments of

local law have to published/announced. The statutes regulate the conditions for

promulgations of ratified international agreements and other international agreements; in general they are published in the same manner as statutes.

Law-making instruments officially announced in the respective public journals (e.g. the Journal of Laws) are considered authentic texts, i.e. original, bindnig and final.

Derogation and amendmentDerogation is a process/act of repealing the

whole law-making instrument or individual provisions by new law-making instrument.

Amendment is a partial modification of the binding instrument by another instrument with the same or greater legal force.

Law-creating: customary lawAcknowledgement of a customary norm

occurs when a state authority makes a decision based on a customary norm.

It is a governing and conventional act, which incorporates such norm to the system of applicable standards.

Precedent decisions of courts are acts of acknowledgement of customary law.

In order to ensure than an „unwritten” standard becomes the law, it is necessary to:

1.define the established conduct resonably precisely (circumstances of application)

2.ensure common conviction about the binding nature of a norm

3.Ascertain, that the will of the state to include the norm in the binding law has been expressed.

Law-creating: case law Case law is constituted by decision of courts

which become sources of binding law pro futuro. Those rulings can be cited as precedents in the future cases. Norms derived from these rulings are distinguished from statutory law which are the statutes and codes enacted by legislative bodies.In common law systems case law and statutory law coexists, although the latter gains importance.

Countries, where case law has significant impact on the system of law, are: USA, Great Britain, Canada, India, Australia, New Zeland and Kenya.

Precedents de iure and de facto Precedent de iure (=binding precedent)The essence of de iure precedents is that they

impose the duty to behave in a way which is consistent with the reasoning of the decision contained in these precedents. Violation of precedent equals violation of the law.

Such precedents are not a source of law in the civil (statutory) law system (so also in Poland). Individual decisions are based on statutory norms – which are general and abstract.

Precedents de iure and de facto stare decisis principle – the principle of

constancy of the decision which applies to the courts of the same or lower position in the hierarchy of authorities. According to this principle, every court is bound by the precedent established by the court of a higher instance and the precedent may be overruled only by the court that established it or the court of a higher instance or by the statute law. Judges are, therefore, generally speaking, obliged to apply precedents that have been established in their judgements.

Precedents de iure and de facto Another usage of this word is also possible.

Word “precedent” can be also used to describe those judicial decisions that constitute a model (example, argument) for further decisions. In this sense we can say that a decision of an authority applying the law constitutes a precedent for another decision if it has a specific, clear, and real impact on that second decision, although formally it was not binding as a source of law/source of that second decision.

Precedents de iure and de facto These are called de facto precedents

(=persuasive precedent). They are becoming more and more popular in the statutory legal systems. Formally (de iure) these decisions have no binding force for the future, but de facto they are considered in the process of applying the law as additional arguments justifying the position taken.

Structure of precedents In each precedent we can distinguish:1. ratio decidendi – essence of the ruling,

which contains general rule/norm/principle, which has been the basis of adjudication/decision and the legal reasoning behind it. This specific norm is now a precedent, a basis for settling all similar specific cases.

2. obiter dicta – intrinsic, unique and secondary features of the cases examined, which do not become the source of law.