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Foundations of Law > Chapter 4: Sources of Law > Flashcards

Chapter 4: Sources of Law Flashcards

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1
Q

decree laws (executive laws) enacted by…

A

government

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2
Q

laws enacted by…

A

parliament

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3
Q

direct/immediate sources of law

A

have their own binding power, they are true means of production of Law

According to art. 1 of the CC, law and corporate rules are immediate sources of law

eg. law, custom

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4
Q

indirect/mediate sources of law

A

no binding force of their own, but still important for the way they influence process of formation of legal rules

eg. doctrine, uses, equity

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5
Q

law/act

A

legal rule that arises from the competent State organs and must be observed by all citizens

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6
Q

corporate rules

A

rules imposed by organs representing corporations, in their field of competence

even though they have no legislative power

eg. Bar Association, Order of Physicians…

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7
Q

law in formal sense

A

legislative action arising from organ with legislative powers

eg. Constitutional laws, laws of Parliament…

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8
Q

law in material sense

A

all legislative action, originated from a competent organ of State, even it not
responsible for the legislative function

eg. laws, decree laws, normative orders, regional decrees

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9
Q

hierarchy of the Law

A

International Law

EU Law (Directive & Regulations)

Constitutional Law

Laws & Decree Laws

Regional legislative-decrees
….

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10
Q

Constitutional laws

A

contain original constitutional rules, or those resulting from a process of constitutional review

161 a) + 166n1

top of hierarchy of internal laws

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11
Q

Common laws

A

legislative powers of Parliament

organic laws = structuring principles of a democratic State Law, deal with matters in 164 CRP

statutory laws = approve statute of each Autonomous Region 228 CRP

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12
Q

process of creation of law (5)

A 
legislative initiative
constitutive phase = discussion & approval
control phase
publication
entering into force
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13
Q

legislative initiative

A

attributed to respective organ:

Members of Parliament
Parliamentary groups
Groups of voters
Government
Regional Parliaments
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14
Q

constitutive phase (6)

A
  1. proposal of law is delivered to the Parliament. If accepted, proposal is given a day in Parliament where deputies can present & change proposals
  2. once project of law is admitted - sent to specialists committee which will prepare a reasoned opinion
  3. general vote = general principles
  4. speciality vote = details
  5. final vote = concentrates on text agreed in the speciality process, making a final judgment on proposed project/law -> 168 CRP
  6. sent to the Head of State under the form of Decree
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15
Q

control phase 1

A

enactment -> 136 CRP
-> solemn act by which the PR converts a Decree in Law, drawn up by a constitutionally competent organ

  • political veto
  • legal veto (unconstituitonality)

at this phase PR can request prior review of constitutionality
-> if unconstitutional = return it to parliament

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16
Q

lack of promulgation by PR determines…

A

inexistence of the act -> 137 CRP

17
Q

control phase 2

A

obtaining the signature of the Prime Minister = counter signature

its absence determines legal inexistence of the act -> 140 2) CRP

18
Q

publication

A

published in the Official Gazette -> 119 CRP

lack of publication implies the legal inefficiency of the law 119 n2

19
Q

entry into force

A

b/w publication & entry into force = period called “vacatio legis” -> Article 5 n2 CC

publication is not enough for law to enter into force:

  • “law comes into force immediately” - 74/98 Art 2 n1
  • has a provision date of entry into force
  • no date = vacatio legis = 5 days from its publication (not counting the day of publication) - 74/98 Art 2 n2
20
Q

laws can be

A

valid = conform w/ legal norms

invalid:

  • unconstitutionality = violates constitutional law
  • illegality = violates law of higher hierarchical structure
21
Q

unconstitutionality

A

law that violates constitutional norm

may be by action or by omission

22
Q

by action (positive)

A

consists in the creation, by the political power, of a rule that breaches the CRP

  • material
  • formal
  • organic
23
Q

by omission (negative)

A

consists in the breach of the CRP due to the lack of a legal rule

silence or inaction of a political organ, that does not practice a particular act, required by the CRP

283 CRP

24
Q

material unconstitutionality

A

inconsistency b/w content of the act of political power and one of the constitutional rules

  • > usually when it is against rights, fundamental aspects about freedom & rights
    eg. Art 24 CC forbids death penalty, however, Parliament approves law that allows it
25
Q

formal unconstitutionality

A

when an act of political power is practiced without having been followed all procedures provided in the CRP for the creation of legal rules

eg. majority needs to be present for law to be aprooved (116 CRP) however, majority necessary isnt reached and Parliament approves it anyways
- PR can ask for prior review (278 CRP)

26
Q

organic unconstitutionality

A

when a sovereign body approves something that is of the exclusive competence of another sovereign body

eg. gov approves a law that is of the exclusive competence of the Parliament (164)
- exclusive competence of gov = 198

27
Q

types of material, formal and organic unconstitutionality

A

total = covers the entire legislative act

partial = covers a part of the normative act, and/or some articles

-> generally, the material unconstitutional is partial, while the organic and formal unconstitutionality are total

28
Q

review of unconstitutionality

A

prior/preventive = before being published 278 CRP

successive = after being published

  • concrete: 280 CRP
  • abstract: 281 CRP (at request of PR, PM…)
29
Q

legal effects of unconstitutionality

A

legal inexistence = when a law carries a flaw so severe that it implies not producing any legal effects

invalidity = rule on legal production is disrespected

nullity = inapplicable for itself

annulment = law will apply, whilst the competent organs do not take the initiative of its annulment

legal ineffectiveness = paralyzes or obviates the production of its effects

30
Q

termination of law (excluding 7 CC)

A

disuse = law no longer applies because no one applies it = falls into oblivion

suspension of law = law can be suspended by another law, or by a hierarchical superior source

expiry = extinction and effectiveness of the effects of an act

revocation = expiry of the law, by the effect of entry into force of the new law, of equal or higher hierarchical value, which regulates the same subject

31
Q

art 7 CC

A

provides only the forfeiture and revocation

32
Q

main sources of law

A

law + custom = immediate sources

uses + doctrine + jurisprudence = mediate sources

33
Q

custom

A

way of creation of legal rules

consists on the repeated and usual practice of a certain conduct, when it is considered mandatory

34
Q

jurisprudence

A

set of decisions of the Courts
- precedent rule only in USA + UK

guidelines that result from the action of Courts on how to solve similar cases

35
Q

types of revocation

A

expressed = when a law identifies the law which it intends to revoke

tacit = if content to be revoked is not clear, requires interpretation (art 7, n2 CC)

  • > global tacit = new law revokes all previous regulations
  • > partial tacit = new law revokes only part of material contained in old rules

Foundations of Law (5 decks)

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