Sources of Law
2. Laws are generated from a variety of sources. Identify at least two different sources of laws and describe the legal basis for those sources of laws. Next, discuss the role of courts in handling issues that arise based upon the types of laws you have identified.
According to Shecaira (2013) “Sources of law are sources of norms systematically treated by judges as content-independent reasons for action” (p. 85). He further states that the said reasons don’t have to be authoritative, for their sources to become the sources of law. There are so many sources of law that the society today has. Some of the laws will come into existence by being written in the Constitution of the particular country, others are passed by the legislature where in most cases it is the parliament or congress) while others will be drawn from long social tradition.
One of the sources of law, perhaps the most common in today’s world is legislation. Once a government is formed and is in place, legislatures are authorized to propose, pass or enact legislative bills or statutes, within specific areas of their jurisdiction (Hemmens, Brody, & Spohn, 2013). The US and all the states have their own legislature. The federal legislature gets its authority from the Article I of the Constitution. The legislature is a source of law since it enacts statutory law or statutes. A statute means a law that is passed by the legislature, and statutory law is that body of law that results from the statutes. A statutory law, or the statute is also what is referred to as the law. An example a legislation (federal legislation) is the OSH (Occupational Safety and Health) Act of 1970. It is a legislation because the congress enacted it to support the mission of assuring that working men and women do so in safe and health working conditions.
Another source of law is the customary law. In the developing countries which were once colonized and decolonized since the 1950s, the law is a mixture of the law introduced by their former colonial powers and the customary law which existed before colonization. In certain spheres of life, this customary law is still in effect and takes priority. There were two ideas of the customary law, according to Bederman (2010), which are the judge made common regime. The other was a continuation of the traditional systems of legal practices. Basically, customary law is applicable in those life areas that were least affected by colonization. These areas may include family relationships, customary titles and land ownership. An ordinary court may deal with these and other cases, but customary law may primarily take precedence over the other kinds of present laws in these cases. This is because they have been adopted in many countries to form part of the national/federal law.
In the case of adopting customary and legislative laws to form part of the national laws, they should first adhere to the constitution that is in place. The constitution of any country is the standard by which any other law should adhere to, if the law is to be considered as one. As the custodian of the constitution in many countries, therefore, the court has a role to play in the whole process. The courts can decide on the legality or illegality of the new piece of legislation, or the custom proposed to become law, based on the constitution that is in place. If the new law being introduced has no point of conflict with the existing laws, then the courts can act on using them in their judgments.
Shecaira, F. (2013). Legal scholarship as a source of law. Cham: Springer.
Hemmens, C., Brody, D. C., & Spohn, C. C. (2013). Criminal courts: A contemporary
perspective (2nd ed.). Thousand Oaks, CA: Sage.
Bederman, D. (2010). Custom as a source of law. Cambridge [U.K.: Cambridge University
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