sources of law and antinomies

Question 1

sources of law

Answer 1

The discourse of sources of law can be found in civil and common law systems. The system of sources of law may change depending on any legal system. When dealing with sources of law, we must start with conflict, because it gives us an idea on how they work. The law is abstract, its application is given to a court/judge etc… the legislator produces an act with the legislation and the interpretation (when it comes from the author, it is called authentic). The role of the court that interprets a legislation can be found in the Corbeau case, as well as the Obamacare reform.

Question 2

normative antinomy

Answer 2

a normative antinomy is a contrast among norms. In contemporary legal systems, antinomies are frequent, and they must be resolved daily. However, before resorting to these criteria, interpretation is a useful resource to avoid antinomies. When facing an antinomy, the judges must try to construct the norms in order to make them consistent with each other.
For example, if there is a provision A, we can extract either norm a1 or a2, and both of these interpretations are valid. If a1 is in conflict with norm B, but a2 is consistent with B, the interpreter must prefer the interpretation of A as a2, rather than causing an antinomy.

Question 3

Resolution of antinomies:

Answer 3

In the legal systems of the western world there are four criteria for the resolution of antinomies: chronology, hierarchy, competence and interpretation

Question 4

chronoligical criteria

Answer 4

an old law can be replaced by a new one
Lex posterior derogat priori: “the newer law amends the previous one”. A law that comes later amends the older one. What does this respond to? The need to have a dynamic legal system, which can be revisited. This is called an amendment or repeal (it is valid from the moment it gets approved and in the future). Laws do not have retroactive effects. (“ex nunc” in Latin).

Question 5

hierarchy criteria

Answer 5

can prevail on chronology.
Lex superior derogate inferiori: “a higher law prevails over an inferior one”. Law is arranged in a pyramid, with the constitution on top. This is relevant to the corbeau case, because the Belgian legislation was infringing a superior legislation, that is the EU law. Paul corbeau was right because the Belgian legislation had to follow the EU one. We find a concrete application, when a lower piece of legislation is in contradiction with a higher one. Usually, in setting of the sources of law, any constitution describes the order of the sources. The lower pieces of legislation cannot be in contrast with the constitution, especially when it is “rigid”. When the constitution solves a conflict between the constitution and an inferior law, the constitution usually announces that the inferior law is annulled. A repeal is valid “ex nunc”, and annulment is valid “ex tunc”. Hierarchy is the opposite of chronology; it gives us a legal certainty. In the Obama care, a new president could propose a reform.

Question 6

specialization criteria

Answer 6

“lex specialis derogat legi generalis”. A specific procedure can prevail on a general rule.

Question 7

competence criteria

Answer 7

assumes that sources are located at the same level. There are some fundamental legislations which regulate competence. In Italy, both the state and the regions have legislative power, but in different aeras of law. A breach on this criteria could fall as well in the hierarchy principle. In between two norms, you have to look at the specific competence. The example of regions is clarifying in this regard.

Question 8

Difference between annulment and repeal:

Answer 8

repeal only matters in future cases, while annulment has a retroactive effect. The norm that has been repealed continues to be applied by the courts and the administration to all the cases and the facts that happened in the past. However, annulment cancels all the effects produced by the invalid norm in the past.

Question 9

the pyramid

Answer 9

sources of law CAN be ordered according to the hierarchy. Usually, the constitution is at the top with its amendments (a superior constitutional law which prevails on the constitution), and the other laws going from top to bottom in importance order. The concept of the pyramid can be considered old fashioned, as there are powers located besides, outside, over and under the state.

Question 10

ordinary law

Answer 10

primary sources of law are located at a lower level. As a primary source of law, we also have the referendum.