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🦹Intro to Law and Legal Process

Sources of Law

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Why This Matters

Every legal argument you'll encounter—whether in a courtroom, on an exam, or in real life—traces back to a source of law. Understanding where law comes from isn't just academic trivia; it's the foundation for determining which rules apply, which authority wins when laws conflict, and how legal change actually happens. You're being tested on your ability to identify hierarchy, origin, and function—knowing not just what these sources are, but how they interact and which one controls in any given situation.

Think of sources of law as a layered system where some sources trump others, some fill gaps left by others, and some only exist because another source authorized them. When you study this material, don't just memorize definitions—know what makes each source legitimate, who creates it, and where it falls in the pecking order. That's what separates a surface-level answer from one that demonstrates real legal reasoning.


Primary Written Sources: The Hierarchy of Enacted Law

These sources represent law that has been formally written down and enacted through official governmental processes. The key principle here is hierarchy—when these sources conflict, the higher-ranked source wins.

Constitutions

  • Supreme law of the land—all other laws must conform to constitutional requirements or be struck down as invalid
  • Framework function establishes government structure, allocates powers among branches, and sets limits on what government can do
  • Individual rights protection through provisions like the Bill of Rights, which shield citizens from government overreach

Statutes

  • Legislative enactments at federal, state, or local levels that create specific rules governing conduct in society
  • Democratic legitimacy derives from elected representatives voting on proposed laws through formal procedures
  • Amendable and repealable by the same legislative body, making statutes more flexible than constitutional provisions

Local Ordinances

  • Municipal-level laws enacted by cities, counties, or other local government entities to address community-specific needs
  • Limited jurisdiction covering matters like zoning, noise regulations, parking, and local business licensing
  • Subordinate status means ordinances must comply with both state and federal law—they can add specificity but cannot contradict higher sources

Compare: Constitutions vs. Statutes—both are enacted by governmental bodies, but constitutions are harder to change and trump statutes when they conflict. If an FRQ asks about judicial review, remember that courts measure statutes against constitutional requirements.


Judge-Made Law: Courts as Lawmakers

Not all law comes from legislatures. Courts create law through their decisions, either by interpreting existing sources or by developing legal principles where no statute exists.

Case Law (Common Law)

  • Judicial decisions that establish binding rules through the doctrine of stare decisis—the principle that courts follow prior rulings
  • Precedent system means earlier cases with similar facts guide outcomes in later disputes, creating predictability
  • Evolutionary nature allows law to adapt as judges apply old principles to new circumstances and societal values shift

Equity

  • Fairness-based remedies developed historically when common law courts couldn't provide adequate relief
  • Distinctive remedies include injunctions (court orders to do or stop doing something), specific performance, and equitable estoppel
  • Discretionary application means judges have flexibility to craft solutions based on the particular circumstances of each case

Compare: Common Law vs. Equity—both are judge-made, but common law typically awards money damages while equity provides non-monetary remedies like injunctions. Know this distinction for questions about available remedies.


Executive and Administrative Sources: Law Through Implementation

The executive branch doesn't just enforce law—it also creates it. These sources derive their authority from constitutional or statutory grants of power and represent law made outside the legislative process.

Executive Orders

  • Presidential or gubernatorial directives that manage government operations and implement policy without legislative action
  • Force of law within the executive branch, though subject to judicial review for constitutionality and legislative override
  • Emergency and policy tools frequently used to respond quickly to crises or advance administrative priorities

Regulations

  • Agency-created rules that fill in the details of broadly written statutes, providing specific implementation guidance
  • Delegated authority means agencies only have power that Congress or state legislatures have granted them
  • Notice-and-comment process requires proposed regulations to be published and open for public input before becoming final

Compare: Executive Orders vs. Regulations—both come from the executive branch, but executive orders come directly from the chief executive while regulations come from administrative agencies. Regulations typically go through more formal procedures and are harder to challenge as arbitrary.


International and Customary Sources: Law Beyond Borders

Some legal sources extend beyond domestic governmental action. These sources bind nations to each other or reflect practices so widespread they've become legally obligatory.

Treaties

  • Formal international agreements between sovereign nations that create binding legal obligations
  • Ratification requirement means treaties must be approved by the Senate (federal) before taking effect domestically
  • Equal standing with statutes once ratified—treaties have the same legal force as federal laws under the Supremacy Clause

Customary Law

  • Unwritten practices that have become legally binding through consistent, widespread observance over time
  • International recognition particularly in human rights and humanitarian contexts, where customs can bind nations even without treaties
  • Cultural foundation reflects the norms and values that communities have long treated as obligatory

Compare: Treaties vs. Customary Law—both govern international relations, but treaties are written and require formal consent while customary law emerges organically from state practice. Treaties provide clearer rules; customary law fills gaps where no treaty exists.


Interpretive and Research Sources: Tools, Not Law

These sources help lawyers and judges understand the law but don't create binding legal rules themselves. The distinction between primary and secondary sources is fundamental to legal research.

Secondary Sources

  • Analytical resources including treatises, law review articles, and legal encyclopedias that explain and interpret primary sources
  • Persuasive but not binding—courts may find secondary source reasoning helpful but aren't required to follow it
  • Research starting points that help identify relevant primary sources and understand complex legal doctrines

Quick Reference Table

ConceptBest Examples
Highest authority (supremacy)Constitutions
Legislative enactmentsStatutes, Local Ordinances
Judge-made lawCase Law/Common Law, Equity
Executive branch sourcesExecutive Orders, Regulations
International sourcesTreaties, Customary Law
Interpretive tools (non-binding)Secondary Sources
Requires formal ratificationTreaties, Constitutions (amendments)
Subject to notice-and-commentRegulations

Self-Check Questions

  1. If a state statute conflicts with a provision in the state constitution, which source controls and why?

  2. Both case law and equity are judge-made—what distinguishes the types of remedies each traditionally provides?

  3. Compare executive orders and administrative regulations: How do their creation processes differ, and what gives each the force of law?

  4. A legal encyclopedia provides an excellent explanation of contract law principles. Can a court cite this as binding authority? Explain the distinction between primary and secondary sources.

  5. Treaties and customary international law both govern relations between nations. If you were arguing that a nation violated international human rights standards but no treaty applied, which source would you rely on and why?