2. Sources Of Constitutional Law

Question 1

What other sources of constitutional law are there?

Answer 1

1. Public international law
2. Federal statutes
3. Customary law
4. Case law

Question 2

Define public international law as a source of constitutional law

Answer 2

It govern relationships between states and other international entities (art. 38 p. 1 statute of international court of justice)

Primary sources:

1. Treaties
2. International customs
3. General principles of law

It only requires that its rules are respected. States are free to decide in which manner they want to respect the rules and make then binding.

Question 3

Define federal statutes as a source of constitutional law

Answer 3

They contain matters of constitutional importance. They regulate questions in fields of:

• citizenship
• people’s rights of political participation
• federal authorities

Question 4

Define customary law as a source of constitutional law

Answer 4

Enacted, written law is by far the most important source of law. However (art. 1 p. 2 CC) courts can apply customary law if an applicable legislative provision cannot be found eg. Limitation to principle of good faith

Conditions:

• evidence of uninterrupted, continuous and coherent practice
• an opinio iuris (option of law) of applying institutions and individuals. The belief that the practice is a legal obligation
• a lacuna in the written law

Question 5

What is the most important source of the constitutional law?

Answer 5

The federal swiss constitution of the swiss confederation

Question 6

Define case law as a source of constitutional law

Answer 6

Judicial decisions are only binding upon the court whose decision has been overruled.
Due to open-ended nature of constitutional provisions, interpretation is a necessity.

Case law from the federal court if of greatest significance.