Sources of public law

Sources of public law

1.The Meaning of the Term “Source(S)”

The term “Source(s)” (also termed fons juris) may mean the origin and authoritative statement from which the substance of the law is derived. It may also be described as: “something (such as a Constitution, Treaty, Statute, or Custom) that provides authority for legislation and for  judicial decisions. A source of law is the point of origin for law or legal analysis.

You may have observed lawyers in Court, when they make statements and refer the Court to particular decided cases, the Law Reports where such cases can be found, to some Act or Statute and pointing to a particular chapter, part or section. We say that the Law Reports and the Statute or Act so cited is sources of his authoritative statements or law.

In literature of jurisprudence, the problem of “Source(s)” relates to the question: Where does the Judge obtain the rules by which to decide cases? In our present context: Where do we obtain the law we have been talking about – the law constituted in the Somali  Legal System? In this sense of the sources of law, we  listed the following:sharia law,the federal constitution,legislation,customary law ,international treaties, writings of legal scholars.

The common law legal system countries their sources of law may be( statutes, judicial precedents, custom, the opinion of experts, morality and equity)

In the context of legal research, the term “Sources” connotes

(i) the origin of legal concepts and ideas

(ii) governmental institutions that formulate legal rules

(iii) published manifestation of the law

2. Classes of Sources of Law

Sources of Law may be classified into formal or material, and the latter further subdivided into historical, legal, authoritative and binding, or other sources.

A. Formal Source

A formal source is what gives validity to the law.

Upon what authority is the Somali National University established?

Upon an Act of the National Assembly,

Who gave the  parliament authority to legislate? The Constitution,

Where does the Constitution derive its power?

The general will and power of the people of Somalia.

This is the Ultimate Source. Thus the formal source of law may be traced to the “common consciousness” of the people, or the “Divine Will”.

B. Material Source

Here we are not concerned with basis of validity as we did in our discussion of “formal source” of law. We are concerned here with the origin of the substance of the law – Where the law derives from or the authoritative source from which the substance of the law has been drawn. This may be

(i) Historical

This may comprise the writings of lawyers, e.g. the rules and principles of foreign law. The writings do not form part of the local law until they are formally received or enacted into law. Prior thereto, they serve as persuasive authority.

(ii) Legal

These are sources that are recognized as such by law itself. Examples are statutes, Judicial Precedent and Customary Law

C. Authoritative and Binding Source

This refers to the origin of the legal rules and principles, which are being enacted or formulated and regarded as authoritative and binding. Examples are legislations (Received law and Local statutes), judicial precedents (Common law and Equity; and local precedents) and Customs (Customary law).

D. Other Sources

These are non-formal sources or origin of legal rules that lack authority, but are persuasive merely.

 Some Professors classified “Source of Law” into six categories; namely:

(i) Local Laws and custom

(ii) English Common law, the doctrines of English Equity and

Statutes of general applications in force in England on 1st

January, 1900.

(iii) Local legislation, and the interpretations based thereon

(iv) Law Reports

v) Textbooks and Monographs on Somali  Law

(vi) Judicial Precedents

 3.Theories of Sources of Law

Legal writers have proffered sources of law, which may neatly be discussed under three headings:

A. Consensus Theory

This theory conceives of a legal system as a product of consensus idea of society, functioning as an integrated structure, whose members agree on the norms, rules, and values, which they have mutually and voluntarily agreed should be uniformly respected. In Somalia , sovereignty and supremacy reside on people, not their ruler and these people are represented by the members of the House of people ,  upper House of federal parliament  , who make laws on their behalf. In the traditional chiefly and chiefless societies, the monarch and chiefs declare what the law has always been from time immemorial, and where they are in doubt, they consult, the Quran.

B.Conflict Theory

The conflict theory is to the effect that the society is made up of series of conflicting and competing groups, and law and legal system is a dictate of the wealthy and powerful in the society to perpetuate their positions, and class interests.

Whether the lawmakers are wealthy or go into lawmaking in order to acquire wealth or get wealthier is arguable. However, there is freedom of expression at the floor of the Houses and immunity from liability

from what goes on there. Dictates of wealth or power, does not therefore appear real or apparent in passing of bills into law.

C. Other Theory (Middle Course)

There is a middle course between Consensus theory and conflict theory. This middle of the road approach argues that Legal system is the handiwork of those exercising political and legal powers of state, not necessarily to protect their own class interests, but expressing the definition of the privileged group, their values, notions and morals.

4.Autochthonism

Legal Theorists have raised further argument of how much of our laws and their sources are autochthonous. Autochthonism or autochthony pertains to the nativity of the law. That is to say, the extent to which the law is or is not indigenous or native to the land in which it operates. Are the sources of Nigerian law indigenous (autochthony) or foreign (alien)?

An autochthonous legislation, for example, may be one which does not trace its validity to any foreign legislature; rather it is home-grown and rooted in the country itself. Autochthony has two aspects:

(i) Formal Autochthony

This relates to the “Source(s)” from which the law or the Court,

derives its authority as law

(ii) Substantive Autochthony

This refers to the contents of the legislation or law e.g. the frame of government which the Constitution has established.

5.sources of public law in Somalia.

Each country’s legal system has its own sources of law.with greater weight placed on some sources than others.

The following are major sources of public law.

A.SHARIA LAW

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