Chapter 4: Sources of Law

Question 1

decree laws (executive laws) enacted by…

Answer 1

government

Question 2

laws enacted by…

Answer 2

parliament

Question 3

direct/immediate sources of law

Answer 3

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

Question 4

indirect/mediate sources of law

Answer 4

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

eg. doctrine, uses, equity

Question 5

law/act

Answer 5

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

Question 6

corporate rules

Answer 6

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

even though they have no legislative power

eg. Bar Association, Order of Physicians…

Question 7

law in formal sense

Answer 7

legislative action arising from organ with legislative powers

eg. Constitutional laws, laws of Parliament…

Question 8

law in material sense

Answer 8

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

Question 9

hierarchy of the Law

Answer 9

International Law

EU Law (Directive & Regulations)

Constitutional Law

Laws & Decree Laws

Regional legislative-decrees
….

Question 10

Constitutional laws

Answer 10

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

161 a) + 166n1

top of hierarchy of internal laws

Question 11

Common laws

Answer 11

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

Question 12

process of creation of law (5)

Answer 12

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

Question 13

legislative initiative

Answer 13

attributed to respective organ:

Members of Parliament
Parliamentary groups
Groups of voters
Government
Regional Parliaments

Question 14

constitutive phase (6)

Answer 14

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

Question 15

control phase 1

Answer 15

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

Question 16

lack of promulgation by PR determines…

Answer 16

inexistence of the act -> 137 CRP

Question 17

control phase 2

Answer 17

obtaining the signature of the Prime Minister = counter signature

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

Question 18

publication

Answer 18

published in the Official Gazette -> 119 CRP

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

Question 19

entry into force

Answer 19

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

Question 20

laws can be

Answer 20

valid = conform w/ legal norms

invalid:

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

Question 21

unconstitutionality

Answer 21

law that violates constitutional norm

may be by action or by omission

Question 22

by action (positive)

Answer 22

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

• material
• formal
• organic

Question 23

by omission (negative)

Answer 23

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

Question 24

material unconstitutionality

Answer 24

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

Question 25

formal unconstitutionality

Answer 25

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)

Question 26

organic unconstitutionality

Answer 26

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

Question 27

types of material, formal and organic unconstitutionality

Answer 27

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

Question 28

review of unconstitutionality

Answer 28

prior/preventive = before being published 278 CRP successive = after being published - concrete: 280 CRP - abstract: 281 CRP (at request of PR, PM...)

Question 29

legal effects of unconstitutionality

Answer 29

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

Question 30

termination of law (excluding 7 CC)

Answer 30

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

Question 31

art 7 CC

Answer 31

provides only the forfeiture and revocation

Question 32

main sources of law

Answer 32

law + custom = immediate sources uses + doctrine + jurisprudence = mediate sources

Question 33

custom

Answer 33

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

Question 34

jurisprudence

Answer 34

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

Question 35

types of revocation

Answer 35

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