Legal source

In jurisprudence, the legal source is the place of origin of a legal provision from which the applicable legal norms are derived.

General

According to the modern view published by Alf Ross in 1929, legal sources are not the reason for its origin, but the “reason for knowing something as a positive right ”. Legal sources are not about the material content , but about the formal development of legal clauses . In general, there are only two main sources of law in legal sources, namely laws and common law . The laws, which are always drafted in writing, also include other legal norms such as ordinances or statutes, insofar as they create an external effect. Common law is unwritten, but constant, steady and general practice in legal dealings. But administrative acts , contracts or judgments are also sources of law with the restriction that they produce a legal effect that is limited to an individual case and to those involved . The theory of legal sources examines how law is enforced and in which forms it can appear.

species

Basically there is only one source of law in the states whose structure or constitution knows only one authority that has the authority to enact legal clauses. Several normative bodies , as they are common in modern, democratic and pluralistic states, lead to different types of legal sources and legal propositions. The legal sources are usually given by the constitution.

Legal sources are divided into the following:

• Sources of law generation are the social conditions which come into consideration as causes for the emergence of a certain legal order ;
• Sources of legal valuation are the general standards according to which law is created and by which the law is checked for justice , such as freedom ;
• Sources of legal knowledge are the references for applicable legal norms such as B. the respective constitution, international treaties , laws, ordinances , public or private statutes , administrative regulations , customary law or precedents .

Sources of legal knowledge are the sources of law in the narrower sense.

Classification of Danish law

Until the first half of the 20th century, Danish jurisprudence distinguished five sources of law:

1. Law,
2. Common law,
3. Prejudices,
4. Analogy and
5. Nature of the matter.

This classification lost its validity under the influence of the work of Alf Ross . Ross used the degree of objectification as a basis and defined three groups:

1. The law,
2. the common law and the prejudices and
3. the nature of the matter.

The analogy has since lost its recognition as a legal source. The same is required in the more recent doctrine for the nature of the thing , which should therefore only be a method of interpretation. Other voices in the literature want to expand the canon of legal sources to include scientific literature.

Collisions

As there can be several legislative bodies of different rank in a legal system and thus also different legal sources for the same area of law , a conflict of norms cannot be ruled out. In the doctrine of legal sources, the individual legal sources are not isolated side by side, but are related to one another. Then collision rules ensure the resolution of standard collisions. This is done through a hierarchy of norms that determine the relationship between different legal sources.

For example, the following hierarchy of legal sources can be defined for labor law:

1. European law
2. Basic Law
3. Laws
4. Ordinances
5. Collective agreements
6. Works agreements
7. Employment contracts
8. Work instructions / service instructions .

This ranking means that

• according to the principle of rank, the higher-ranking legal source takes precedence over the lower and displaces it ( Lex superior derogat legi inferiori ),
• a deviation from a higher-ranking legal source is only possible with a more favorable regulation ( favourability principle ) or an opening clause ,
• In the case of sources of the same rank, the special regulation takes precedence over the general regulation (principle of specialty ; Lex specialis derogat legi generali ) and
• the younger legal source replaces the older one ( principle of order ; Lex posterior derogat legi priori ).

One of these rules of conflict applies in individual cases and decides which legal source is to be used.

Individual evidence

1. ↑ Alf Ross : Theory of legal sources. A contribution to the theory of positive law based on studies of the history of dogma , Leipzig / Vienna 1929, p. 292.
2. ↑ Joachim Vogel : Juristische Methodik , 1998, p. 41 .
3. ^ Paul Kirchhof , legal sources and Basic Law , in: Christian Starck , Federal Constitutional Court and Basic Law , Volume II, 1976, p. 50.
4. ^ Paul Kirchhof, legal sources and Basic Law , in: Christian Starck, Federal Constitutional Court and Basic Law , Volume II, 1976, p. 53.
5. ↑ ^{a b} Inger Dübeck (Ed.): Introduction to Danish law . Nomos, Baden-Baden 1994, p. 21-27 .
6. ↑ Siegfried Charlier, ABC of Nursing Management , 2013, p. 331 .