of law, and this means simply that part of the law exists (or existed) in the form of
customary law.
Rationalist Law Other parts of the law, such as legal principles—and also human
rights to the extent that they and their interpretation have not been codified—are
counted as law because it seems reasonable that they are part of the law. This
phenomenon is strengthened further if reasonable rules and principles find recogni-
tion in legal doctrine or even in documents that acquire the status of soft law. In this
sense, reason is also a source of law.
Created LawBy far, most laws are created law, law that was laid down by a body
that had the power to do so, such as a legislator, a court (in the common law
tradition), or states that have entered into a treaty. Therefore, legislation, cases, and
treaties are also seen as sources of law.
What all these cases have in common is that they represent ways in which the
law, as a matter of fact, has come into existence. Law originated from custom,
reason, doctrine, legislation, precedent, and treaties, and this is expressed by saying
that custom, reason, doctrine, and so on are sources of origin of law. This observa-
tion—that the law has come into existence in a number of different ways—is no
more than a mere matter of fact, which has no legal significance. Sources of origin
as such have no relevancy to the content of law. This is different from validity
sources, however.
2.2 Sources of Validity
The legal relevance of validity sources has to do with two related phenomena:
- Legal rules can be created by persons who, or institutions that, have the power to
do so. These rules, which are valid because they were created by recognized rule
makers, are called institutional rules. - The “sources thesis” holds that only those rules can be legal rules that stem from
a source of law: from a validity source.
This sources thesis is strongly connected to legal positivism, a view according to which the
law is something that ismade(see Sect.14.2.2).
We have seen that, in the course of history, legal rules came into existence in
different ways, representing different sources of origin of the law. All these sources
are forms in which the law has, as a matter of fact, appeared in the course of history.
The fact that the law has appeared in these forms does not mean that the rules were
considered to be lawbecausethey appeared in this form.
Judicial decisions in the civil law countries illustrate this point nicely. In the civil law
tradition, judges are not bound by the decisions of their predecessors or higher courts.
Nevertheless, these decisions lead to law in a way that is different, but not so very different,
from the way in which they lead to law in the common law countries. Precedents are not24 J. Hage