Blog

The law, written source of law

In the broad sense, the law encompasses all texts emanating from the legislative and regulatory powers.

Strictly speaking, the law comes from the legislature. It is voted by Parliament.

Article 34 of the Constitution defines exhaustively the matters that fall within the scope of the law: civil rights and civil liberties, nationality, state and capacity of persons, matrimonial regimes, inheritances and liberalities, determination of crimes and offenses and their penalties, regime of property, real rights and civil and commercial obligations, labor and social security law, tax law …

Matters outside the scope of the law are regulatory in nature. It is the government that has the power to draft the texts that concern them. These are the orders of the President of the Republic, decrees and orders.

Article 39 of the Constitution states that the initiative of the laws belongs concurrently to the Prime Minister (draft law) and to the members of Parliament (bill of law).

In principle, the law is not retroactive, that is to say that a new law can not apply to situations or effects prior to its entry into force.

There are exceptions to this principle: expressly retroactive law, interpretative law, softer criminal law and procedural law.

In addition to state texts, there are also treaties that are agreements between states. Some regulate one or more subjects, others unify certain branches of law, the latter create supranational bodies.

At the legal level, for France, the most important supra-national texts come from the European Union. It is :

  • Regulation: Act of general scope, of direct application in the Member States
  • the directive: an act which imposes on the Member States a goal to be achieved within a certain period. They must transpose the text into their national law
  • the decision: an act imposing obligations on a person or class of persons
  • the recommendation: an act which invites Member States to act with a view to achieving a specific objective

Given the multiplicity of texts, a difficulty may arise in case of contradiction between them. This pitfall is avoided because of the hierarchy of sources of law, which is as follows:

TEXT

CONTROL BOARD

Constitution

The Constitutional Council , seized before the promulgation of a law or the ratification of a treaty: controls their conformity with the Constitution

treaties

Administrative or judicial courts, as the case may be, in a lawsuit where the parties invoke the non-compliance of a law with a treaty

Lois

Administrative courts seized of an appeal for abuse of power against an administrative text contrary to a law

Regulations – Decrees – Orders

Administrative courts seized of an action for abuse of power against an administrative text contrary to a higher administrative text

A lower category text can not therefore be in contradiction with a higher category text to which it is subordinate.

Illustrations of this principle are legion and often relevant. the CPE Act is a perfect example.

We will be interested in the next article in the thick of the subject of our profession: our daily practice of law which influences the jurisprudence of our jurisdictions.

Follow Me In Social Media