competence to do so. Let us call such an institution or person a “legislator.” The
competenceof a legislator is always confined to making laws that apply to
- particular persons (e.g., persons with a particular nationality) and/or
- a particular territory (e.g., the territory of a state or a municipality) and/or
- a particular subject matter (e.g., food security or financial markets).
Trias PoliticaIn order to avoid an overly high concentration of power in the hands
of a few individuals, it is desirable to divide the powers of the state among different
organs. A common way to accomplish this is to assign different functions of the
state to different organs. Administration would then be performed by a different
organ than adjudication, and legislation would be performed by yet another organ.
This division of state functions among three different institutions is known as the
Trias Politica(see Sect.8.2.2).
An additional ideal in this connection is that state organs that exercise legislative
powers are, at least in part, made up of representatives of the people.
Parliament plays a role in legislation on a national level in all EU Member States. On a sub
national level, a municipality often has some kind of community council, which will also
play a role in legislation.
In this manner, there is a safeguard that the people to which the rules apply have
a say in the content of these rules.
2.3.1 Layers of Law
This idea of the Trias Politica is still very much focused on legislation performed by
a national state and on rules that apply to the nationals or the territory of such a
state. The resulting picture is misleading because actually there exists legislation on
many levels, including the subnational and the supranational levels, and there is
also legislation that is not even linked to a particular territory.
In most of Europe, the highest level of legislation is that of the European Union
(EU). The EU is competent to create rules in the form ofregulations, and these rules
are binding not only upon the Member States themselves but also inside the
Member States, that is the Member States’ legal subjects. The scope of application
of these regulations is the whole of the EU.
The EU can also make so-calleddirectives, which obligate Member States to create rules
with an aim that has been specified by the EU. These rules will be the result of the national
legislation of these states, but their content is mostly determined at the EU level. See
Sect.10.3.1.
At the level of national states, there will be a legislative body in which Parlia-
ment is somehow involved. This body can create laws that apply in the whole state
and/or to all of its nationals. If a national state is a federation, this means that it has
what can be called “substates.”
2 Sources of Law 29