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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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
| Concept | Best Examples |
|---|---|
| Highest authority (supremacy) | Constitutions |
| Legislative enactments | Statutes, Local Ordinances |
| Judge-made law | Case Law/Common Law, Equity |
| Executive branch sources | Executive Orders, Regulations |
| International sources | Treaties, Customary Law |
| Interpretive tools (non-binding) | Secondary Sources |
| Requires formal ratification | Treaties, Constitutions (amendments) |
| Subject to notice-and-comment | Regulations |
If a state statute conflicts with a provision in the state constitution, which source controls and why?
Both case law and equity are judge-made—what distinguishes the types of remedies each traditionally provides?
Compare executive orders and administrative regulations: How do their creation processes differ, and what gives each the force of law?
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.
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?