Law, Sources of

Law, Sources of


a legal concept encompassing questions concerning the authority that establishes law and the authority that makes it obligatory for all. The term “sources of law” is also used in scholarly writings to denote the sources of knowledge of law, that is, materials that contain data enabling one to apprehend the character and the content of the law of different states in different periods, such as texts of statutes, records of customs, judicial proceedings, statements of jurists, chronicles and historical annals, and archaeological remains. The term “sources of law” was first used by the Roman historian Livy, who called the laws of the Twelve Tables the source of the entire public and private law (that is, of the Roman law of Livy’s time).

In bourgeois jurisprudence there are many contradictory points of view on the question of the sources of law. Common to all these views, however, is an idealist interpretation of law and a complete divorce of law from the economic conditions of the life of society and from the class struggle. Bourgeois jurists consider the authority establishing law to be divine forces, the spiritual world of man, human psychology, the nature of the human mind, national spirit and popular traditions, or some higher norm of justice. These jurists consider the authority that makes law binding to be statutes and other normative acts, judicial precedents, and legal customs, which supposedly in themselves, by virtue of their form, make certain behavior obligatory. Given this interpretation, the form of law takes on an autonomous, self-sufficient significance and is completely divorced from the content of law. All bourgeois theories of the sources of law, despite their diversity, have one goal—to conceal the class character of bourgeois law, to prove its objective necessity and its binding nature, and to justify the expansion (characteristic of contemporary imperialist states) of the law-making activity of judicial and administrative agencies, whose acts are made equal to statutes in legal force.

In socialist law, the materialist interpretation of the nature of law and the dialectical approach to questions concerning the establishment of legal acts and their binding force have brought about a fundamentally different solution to the problem of the sources of law. Law has sources in a material and a formal (legal) sense. The sources of law in the material sense comprise the totality of social factors that creates law: the state, social classes and their struggle, ideology and politics, and the material conditions of a given class society. State power, creating through the consciousness and will of the ruling class the material conditions of society, expresses the interests of the ruling class through law and assures protection of legal institutions against violations. In the formal sense, the sources of law are the forms by which the state’s will is expressed, with the rules embodied in these forms acquiring the significance of legal norms. In this sense, Soviet scholars regard the sources of law not as an authority imparting binding force to the law but rather as the forms of the existence of law, that is, acts containing legal norms. In the USSR such acts are statutes of the USSR and of the Union and autonomous republics, the normative edicts of the presidiums of the supreme Soviets of the USSR and of the Union and autonomous republics, the orders and decisions of the councils of ministers of the USSR and of the Union and autonomous republics, the orders and instructions of the ministers of the USSR and of the Union and autonomous republics, and the decisions of local soviets of workers’ deputies and their executive committees. In certain cases that are provided for by law, the sources of law are collective bargains and the normative acts of social organizations, for example, the decrees of the All-Union Central Council of Trade Unions concerning labor protection.

Similar sources of law also exist in other socialist countries. Judicial precedent is not recognized as a source of law in any socialist country and in most cases legal custom is not employed.