Sources of Law in Continental Analytical Jurisprudence
Forthcoming in L. Burazin, M.S. Green & G. Pino (eds.), Jurisprudence in the Mirror (Oxford University Press)
31 Pages Posted: 6 Apr 2022
Date Written: March 16, 2022
This chapter explores various aspects of the concept of "sources of law" in continental analytical jurisprudence. We chiefly pursue two distinct aims. First we try to provide a a reasonably comprehensive, albeit by no means exhaustive, overview of the way analytical legal philosophers in the civil law tradition have conceived the concept of sources of law and the problems thereto related. Secondly, we attempt to advance our own understanding of the concept of sources of law.
In the first part, we distinguish between four possible concepts of sources of law: sources as facts, as norms, as authoritative texts and materials and as causal factors. We then explain why sources are best understood as law-creating facts, that is, as criteria of the validity of legal rules.
In the second part, we try to show how the classic debates among jurists and lawyers concerning the various types of sources (legislation, precedent, custom) have been received by legal philosophers and to what extent a jurisprudential analysis of these debates could reveal some enduring confusions.
On our analysis, the concept of a source of law remains a central concept of both doctrinal scholarship and legal practice in many countries on the Continent; as such, it captures both the fixity of the law’s points of origin – i.e. law-creating facts – and the fluidity of its outcome – i.e. the very content of the law thus created. This is why we can accept both that legal validity is fixed according to more or less determinate criteria picked out by a moderately open-textured rule of recognition, and that the precise content of the law is shaped by interpretive practices.
Keywords: sources of law, legal philosophy; general jurisprudence; Continental analytical jurisprudence; Hans Kelsen; Alf Ross; legislation; precedent; custom;
JEL Classification: K00
Suggested Citation: Suggested Citation