A. Written sources of law
There is a hierarchy in the written sources of law: constitutional
constitutional texts prevail over legislative texts
legislative texts, which take precedence over the texts of
regulations.
1. Texts with constitutional value
The Constitution of 4 October 1958 created theFifth Republic. It
concerns the exercise of power and the organization of the institutions of the State, and thus defines many fundamental freedoms.
It can only be modified by the people themselves or by the parliament in congress.
The Constitution includes several fundamental texts which are at the top of the hierarchy of law:
—the preamble to the 1958 Constitution, which refers to the Declaration of the Rights of Man and of the Citizen of 26 August 1789, and to the preamble to the Constitution of the United States of America
rights of man and the citizen of 26 August 1789, and the preamble to the
Constitution of 27 October 1946
—the articles of the 1958 Constitution
—the Charter of the Environment of June 24, 2004
2. Texts with legislative value
The law:
The law is a rule of law formulated by an authority. In concrete terms, the law corresponds to the texts voted by the Parliament. There are three types of laws
:
—constitutional laws, which govern the establishment or amendment of the Constitution
—organic laws, which govern the organization and functioning of the public powers
—ordinary laws, voted by the National Assembly and the Senate, the most numerous: they are proposed by the Parliament or by the
government.
Ordinances:
The ordinances issued under Article 38 of the Constitution are texts taken by the Government, if an enabling law allows it, and which are submitted to the Parliament for ratification.
Autonomous regulations:
Autonomous regulations under article 37 of the Constitution are texts made by the executive made by the executive when article 34 of the Constitution, which sets out the matters for which the law of the Constitution, which sets out the areas of competence of the law (“The law sets out the rules concerning [etc.]”), has not provided for this matter,
has not provided anything on this matter. These regulations are at the same level as the law and therefore in competition.
3. Texts with regulatory value
Regulations are derived from the law and therefore have less force. Among the regulations, there is a hierarchy:
—Decrees of the President of the Republic.
—Decrees of the Prime Minister.
—Ministerial orders.
—Prefectural orders.
—Municipal by-laws.
A decree is a regulatory or individual act taken by the President of the Republic or the Prime Minister. An
order is an act issued by an administrative authority other than the President of the Republic or the Prime Minister. It may be
ministers, prefects, mayors, presidents of general or regional councils or regional councils.
The order is inferior to the decree.
It is possible to appeal for excess of power when a regulation is considered deemed illegal.
B. Unwritten sources of law
1. Custom
Definition of custom: unwritten or late codified law, specific to a people and people and then to a social group and formed by a set of legal rules (governing public as well as private
(governing public as well as private affairs) based on local customs, rules that have the force of law, without having been promulgated as such.
Thus, two criteria make it possible to define what is customary
custom:
—The material criterion of custom: the behavior must be habitual, repeated, generals, and always current.
—Psychological tests of custom: there must be a deep-seated
belief that the rule is binding.
Custom has three roles:
—Custom according to law (Segundum legem): when custom arises from the law in place
—Custom in the silence of the law (Praeter legem): when custom takes place in legal vacuums, where there is no law
—Custom against the law (Contra legem): when custom opposes a law that has fallen into disuse.
Do not confuse custom and usage: custom has a national, broad level,
whereas usage is a general practice that is considered obligatory, just like custom, but which takes place only in a restricted geographical or professional framework.
2. Jurisprudence
Definition of case law: The body of law that emerges from the decisions of decisions rendered by the courts in a country or on a subject; authority that results from it as a source of law.
There is a debate as to whether case law can be a source of law for those who say no give three reasons:
—Separation of powers, judges cannot produce law.
—Article 5 of the Civil Code states that“judges are prohibited from making general and
general and regulatory provision on the causes that are submitted to them”, in other words,
to them”, in other words, they must only apply the law.
—The relative authority of res judicata, established by article 1351 of the
Code, which provides that a judgment is valid only for a given case
case.
Thus, when a different judgment is rendered for another case, a so-called reversal of what is called a reversal of jurisprudence.
Those who answer yes, jurisprudence produces law, point out that
:
—article 4 of the Civil Code:“the judge who refuses to judge, under the pretext of
the pretext of the silence, the obscurity or the insufficiency of the law, could be prosecuted as guilty of denial of justice”
Two methods allow judges to interpret texts, even if they are free to apply another free to apply another one:
—The exegetical method which analyzes the text, considering that everything is in the law, to find the meaning of the law.
—The method of free scientific research, which considers the will of the legislator, and looks for the interpretation to be given to the law.
3. The doctrine
The doctrine is the whole of the opinions on the law of the specialists of the legal matter: great jurists, jurisconsults.
The doctrine allows informing about the law, to understand the principles of the legal system, and to criticize the legal system.
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